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Breastfeeding at work

World Breast Feeding Week

As we approach the end of this World Breast Feeding Week, let’s reflect on the fact that the NHS and the World Health Organisation recommends to the vast majority of new mothers to exclusively breastfeed for the first 6 months of their baby’s lives. Past this age, breastfeeding is still recommended but alongside solid food.

What does this mean for you as an employer? That many new mothers will still be breastfeeding when they return to work for you.

What are employers duties and obligations?

Even though in Scotland it has been an offence to prevent a child under the age of two from being fed milk since 2005, there is yet to be a statutory right to breastfeed at work in the UK (breastfeeding covers both feeding the baby and expressing milk).

There is significant guidance intended to support and encourage employers to positively support breastfeeding.  The Equality & Human Rights Commission Code (EHRC Code) highly recommends all UK employers to accommodate women that wish to continue breastfeeding when they come back to work with the Health and Safety Executive (HSE guidance) recommend a private, safe and clean environment (other than the toilets) is provided to staff for expressing milk, who should also have access to a secure and clean fridge for storing purposes.

Importantly the EHRC Code highlights the need for employers to remember their duty of care to remove any hazards for breastfeeding employees. Indeed, as soon as the employee lets their employer know that they will be breastfeeding, the employer is required to assess the risks to its employee and to do what is reasonably practicable to control those risks under the Management of Health & Safety at Work Regulations (MHSW Regulations).

What are the risks of not support supporting breastfeeding at work?

Section 13 of the Equality Act 2010 amended the law to provide that, for the purposes of direct discrimination, less favourable treatment of a woman includes less favourable treatment of her because she is breastfeeding.

However, rather interestingly, that provision is expressed not to apply to discrimination at work, where only indirect discrimination can be found by an Employment Tribunal.

The EHRC Code gives the example of a case in respect an employer refusing a request from a woman to return from maternity leave part-time to enable her to continue breastfeeding her child who suffers from eczema, having informed her employer that it had been advised by the baby’s doctor. In such a scenario, unless it can be objectively justified, a refusal by an employer is extremely likely to be indirect sex discrimination.

In the past years, the fact that only indirect discrimination applies in the workplace has been exponentially criticised. This was called into question by the European Court of Justice’s decision in Ramos v Servicio Galego de Saude where the Court held that a failure to undertake a proper risk assessment for a breastfeeding mother at work would amount to direct discrimination.

What are the business benefits of supporting women that are breastfeeding?

First of all, employers should have proper policies in place to support mothers that are breastfeeding but moreover those policies must be advertised, understood and become part of the business’ culture.

Employers that do can expect:

  • reduced absence due to child sickness (breastfed babies are found to be healthier)
  • higher rates of return to work after giving birth
  • Increase in recruitment of women
  • stronger staff loyalty
  • the cultural and other benefits of being seen as a modern, supportive employer

If not in place already, there is little doubt that your organisation would benefit from having breastfeeding policies.  To do more to support your breastfeeding employees take a look at the ACAS guidance on breastfeeding and if a free consultation with one of our expert employment lawyers around how your business could do more to support diversity and inclusion in the workplace is of interest, don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/

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