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Breastfeeding Mothers Entitled to Work Reduced Shifts or Alternative Roles in Landmark Tribunal Ruling

Companies may have to make better arrangements for female staff who are breastfeeding, including changing their hours, after a “groundbreaking” tribunal ruling.

A tribunal in Bristol has upheld a claim lodged by EasyJet employees against the airline company for its failure to provide them with flexible working hours to breastfeed their children. According to the tribunal, the Employment Rights Act (ERA) 1996 requires employers to provide breastfeeding mothers with the opportunity to work reduced shifts, take on alternative roles or should suspend their contracts on full pay whilst in the early phases of parenthood. 

After the case was lodged by its cabin crew, EasyJet did provide breastfeeding employees with 12 hour standard shifts and agreed to provide them with new roles for six months. However, the tribunal made it clear that EasyJet had not done enough to escape the consequences of a discrimination claim, explaining that breastfeeding was not a choice that could be limited to a six month period. The airline company has since been ordered to review its working practices in light of the ruling. 

The Equality Act 2010 makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Discrimination happens when a woman is treated unfavourably because of her pregnancy, pregnancy-related illness or she exercises the right to statutory maternity leave.

•    It is unlawful to discriminate against an employee because they are pregnant or have a pregnancy-related illness. This covers the protected period which finishes when maternity leave ends or when the employee returns to work.

•    Discrimination because of pregnancy or maternity is automatic discrimination. There is no need for the woman to show that she has been treated less favourably than a male employee, or a female employee who was not pregnant.

There are two main types of pregnancy and maternity discrimination:

1.    Direct discrimination- when a female employee is treated unfavourably because of her pregnancy or maternity leave or because she is breastfeeding. Direct discrimination by perception does not apply to pregnancy and maternity. However, while there is uncertainty over whether the Equality Act would allow a claim of direct discrimination by association because of pregnancy or maternity, The Equality and Human Rights Commission's Code of Practice on Employment advises that an employee who is treated less favourably because of their association with a pregnant woman may have a claim for sex discrimination.

2.    Victimisation- treating an employee less favourably than others. For example, this might be because they have made or supported a complaint about pregnancy, maternity or breastfeeding discrimination.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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