World Breastfeeding Week – 1-7 August 2015

We were recently contacted and asked about the current legislation regarding breastfeeding, and considering this week is World Breastfeeding Week we decided to prepare some guidance on breastfeeding on your return to work, and in public places.

Breastfeeding on your return to work

Many women return to work when they are still breastfeeding, it may be that there are childcare facilities close to your workplace so that you can visit your baby and breastfeed normally during the day. Alternatively, where you cannot visit your baby you can express breastmilk.

You should discuss with your employer where and when this can be done; some larger employers may have mother and baby rooms, where this is not the case your employer may allow you to use a spare office or a first aid room.

Whilst there is a statutory right to paid breastfeeding breaks or a shorter working day in many other European countries, (where your baby is under 12 months old), the UK law does not currently provide a right to time off at work to breastfeed. However, breastfeeding mothers do have some protection under health and safety and sex discrimination legislation, which could include detrimental treatment or offensive teasing on the grounds of breastfeeding.

There is a legal obligation on Employers to provide health and safety protection, rest facilities, and protection from indirect sex discrimination and harassment; a “specific” risk assessment must be carried out of risks to new and expectant mothers arising from “any processes, working conditions, physical, biological and chemical agents”. If the assessment reveals a risk then your employer must take all reasonable steps to remove it or prevent your risk to it. Information must be provided to you on the risks and what action your employer has taken.

If you feel there are still risks to your health and safety you should inform your employer in writing that you are breastfeeding; if you want them to take action. They should consider the risks and any reasonable action to change your working conditions temporarily, you may be able to avoid night shifts or overnight stays, or simply work shorter shifts. Reasonable action to protect your health and safety while you are breastfeeding might include adequate rest breaks to ensure proper nutrition, access to washing facilities and water, or ensuring the environment is not too hot or cold. Levels of fatigue, stress and changes in posture should also be considered by your employer.

Your employer must be careful not to discriminate against employees who breastfeed, therefore, any breaks from work should be considered reasonably and objectively against the likely impact it may have on their business. If additional breaks cannot be agreed, it may be reasonable to slightly extend your normal breaks to minimise disruption to the business.

Where adjustments to hours or conditions would not enable you to continue breastfeeding, your employer should temporarily transfer you to alternative work. This will be relevant if your GP has advised you that the job is so stressful or tiring that it may jeopardise your ability to breastfeed, or where your job involves a lot of travel away from home.

Any additional breaks or alternative work should be provided with any loss of pay. In extreme cases where there are no adjustments which would enable you to breastfeed the company should suspend you on full pay, although this is unlikely to ever be necessary.

Breastfeeding in Public

The Equality Act 2010 clarified that treating a woman unfavourably because she is breastfeeding is sex discrimination.

This applies to anyone providing facilities, premises, services and benefits to the public. Service providers includes most organisations that deal directly with the public. It is unlawful to discriminate, harass or victimise a woman because she is breastfeeding, this might include providing a service on different terms, providing a lowers standard of service, or refusing to provide the service at all.

This protection extends to public places such as theatres, cinemas, public buildings, parks, sports and leisure facilities as well as public transport. You are also protected in shops, restaurants and hotels regardless of their size.

However, it is not against the law to prevent you from breastfeeding where there are legitimate health and safety risks, such as chemicals or radiation.

It is also not against the law to prevent you breastfeeding in a service which is a single sex service for men, provided that service is justified. For example, a religious organisation, voluntary group or charity set up specifically to benefit men (or in line with religious doctrines) may be acting lawfully in excluding women.

If you feel you have been treated unfavourably because you are breastfeeding you should initially make your complaint to the organisation that has discriminated against you. A lot of service providers and other groups should have complaints procedures in place, if they don’t then you should ask who you need to make your complaint from.

If the organisation or service provider refuse to deal with your complaint, or if you feel it has not been resolved then you can bring an action in a County Court in England or Wales (Sheriffs Court in Scotland). This must be done within six months of the date of the act you are complaining about, but you should seek advice as these claims can be expensive to bring.

If your claim is successful the court can order compensation (including an amount for injury to feeling), a declaration that you were discriminated against or an injunction. You must bear in mind however that if you lose you may be ordered to pay the other parties legal costs.

WorkingMums commented “There definitely needs to be more education on women’s rights around breastfeeding when they return to work as this will mean they can make more informed choices around how they decide to feed their children in those early months.”

If you feel that you may have been discriminated against, at work or in public, please do not hesitate to contact me for specialised practical advice regarding your potential claim, at crystalbolton@michaellewin.co.uk or 0113 200 9784.

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