Failure To Provide Workplace Facilities To Express Breastmilk – Harassment Or Discrimination?

Failure To Provide Workplace Facilities To Express Breastmilk – Harassment Or Discrimination?

Key Contact: Claire Knowles

Author: Esther Baranski

In the case of Mellor v MFG Academies Trust, the Tribunal has considered the duty to offer workplace facilities to breastfeeding mothers. Ms Tara Mellor brought a claim against the school in which she was employed for direct and indirect sex discrimination, and harassment on the grounds of sex. Here, the Tribunal concluded that both claims for sex discrimination were not to be upheld, upholding only Ms Mellor’s claim for harassment on the grounds of sex.

In March 2020 whilst pregnant with her second child, Ms Mellor wrote to the school advising them that she would require a private room to express breastmilk upon her return from maternity leave – she had been provided with private facilities after the birth off her first child. Ms Mellor wrote to the school a second time in June 2020, reminding the school of this requirement. On Ms Mellor’s return to work, Ms Mellor requested for the third time the use of a private room in order to express milk, this time making the request to her manager and HR. No suitable room was provided to Ms Mellor.

Ms Mellor was left with no other option than to express her breastmilk in either her car in the school car park or the toilets during her 25 minute lunch break.  She said that she felt compelled to choose the toilets over the car park as she was worried that a student or member of staff may see her in her car. As Ms Mellor was also not given any additional time in order to express her milk, she often had to express her breast milk sat on the toilet floor and eat her lunch at the same time.

The employment tribunal agreed that Ms Mellor had no feasible alternative, with the Employment Judge stating, “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so.” The tribunal found that the school had a practice of not providing suitable facilities for women to express breast milk and found that this had the potential to fall within the definition of indirect discrimination in accordance with the Equality Act 2010 (EqA). The tribunal found that this had the potential to constitute a provision, criterion or practice for the purposes of an indirect discrimination claim. However, the Tribunal went on to consider the issue of disparate impact, and for comparative advantage to arise, the provision, criterion or practice had to have the ability to be applied to both men and women.

Therefore, as biological men cannot have an interest in the sex specific practice of breastfeeding, the tribunal concluded that Ms Mellor had failed to establish that there was a comparative disadvantage between women and men in relation to the practice of the school refusing to provide suitable facilities for women to express breast milk. In consequence, Ms Mellor’s claim for indirect discrimination failed.

Similarly, the tribunal also decided that Ms Mellor’s claim for direct discrimination failed. Ms Mellor relied on the hypothetical comparator of a diabetic man requiring a private space to inject insulin; in order to prove that her treatment was less favourable due to her sex. The school conceded that facilities would have been made available to a man to inject insulin. However, the tribunal held that it was the poor administrative procedure of the school that caused Ms Mellor to suffer this less favourable treatment, not her sex. Therefore, Ms Mellor’s second claim of direct discrimination failed.

Despite Ms Mellor’s claims not being upheld with regards to sex discrimination, the tribunal held that the school’s conduct of forcing Ms Mellor to express in the school car park or the toilets, with the risk of being seen by pupils or staff, was unwanted. The school’s conduct was ruled to have, albeit unintentionally, created a degrading and humiliating environment for Ms Mellor. The tribunal also held that the conduct was related to Ms Mellor’s sex due to the intimate nature of the activity and the risk of exposure of body parts in public, inherently linked to Ms Mellor being a woman.

Therefore, the tribunal concluded that the school’s conduct towards Ms Mellor constituted sex harassment.

The decision in this case is controversial as the outcome of the discrimination claims are arguably unsatisfactory. However, the tribunal was bound by the decision in a previous case that a practice had to have the potential to disadvantage both men and women for it to be discriminatory.

This is a case that may well have turned on its facts, and the way the case was pleaded.  Employers would be well advised to engage with pregnant staff and staff returning from maternity leave as to what facilities may be required, and to work with them to find an arrangement that works for both sides in order to create a happier and more productive workforce. If you have any queries, please do not hesitate to contact a member of our employment team.

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