While there is no legal requirement to provide paid breaks or suitable facilities, good practice encourages employers to do so safely.
Many new mothers want to continue to breastfeed when they return to work. As well as providing a supportive environment for mothers returning from maternity leave, employers must ensure they meet their legal obligations.
In the UK, breastfeeding mothers have some legal protections which are dealt with under general health & safety laws and sex discrimination laws. Employers have a legal duty to provide:
- Health and safety protection
- Protection from discrimination
- Rest facilities
- Protection from harassment
Breastfeeding can be a sensitive issue and your employee may feel uncomfortable discussing their needs with you. It is good practice for an appropriate manager, often a line manager, but not always, to talk with the employee who is preparing to return to work following maternity leave. As part of that discussion, breastfeeding should be raised and options explored about what could reasonably and proportionately be done to help ease the employee’s return to work.
You will need to strike a balance between the needs of a breastfeeding employee, bearing in mind that it will only be for a temporary period, and the needs of the business.
Enabling breastfeeding employees to continue to do so after their return to work may encourage loyalty, and demonstrate to others, whatever their gender, that you support family-friendly policies.
Practical considerations
- Does the employee need to go home or to a nursery nearby to feed their baby?
- Is a relative or childminder going to bring the baby to the workplace to be fed?
- Is the employee going to express milk during the working day?
Creating the right environment
It is good practice to have a policy on breastfeeding at work setting out how requests will be dealt with. Having a policy will help you make fair decisions when handling a request.
If the breastfeeding at work request is approved, you must guard against inappropriate behaviour towards an employee who is breastfeeding. This is achieved by getting the facilities right at the outset and also preventing ‘banter’ that the breastfeeding employee may find humiliating or offensive. Such banter could amount to unlawful harassment, and although you may not be the one involved in the banter, failure to prevent it leaves you liable as if you were personally involved.
Getting your facilities right
Employers have an obligation to designate ‘suitable facilities’ for a breastfeeding employee to ‘rest’. The Approved Code of Practice states that these facilities should be conveniently located in relation to sanitary locations and, where necessary, include a place to lie down.
It should not come as a surprise when a breastfeeding employee requests a private, hygienic, safe and secure area where breast milk can be expressed. This could be an unoccupied office or an area used for meetings that can be screened off.
If, after careful consideration, you are physically unable to provide an appropriate space, you should discuss this with the employee to work out if there is an alternative or alternative facility. Sometimes, simple adaptations can be made at very little cost.
Fridge and storage
Expressing milk generally requires the use of either a manual or electric pump. The pump and bottles must be sterile so that the milk does not become contaminated, so it is essential that the breastfeeding employee has access to clean, hygienic facilities to express milk.
Health and safety protection
If an employee’s working conditions stop them from breastfeeding, they may be able to argue that their health and that of their child is being put at risk. Additionally, some hazardous substances can enter breastmilk and could pose a real risk to the baby. If your organisation brings an employee into contact with a dangerous substance, you should take steps to make the job safe. If the job cannot be made safe, then the employee must be transferred to a suitable alternative role or suspended on full pay.
Under health and safety laws, employers must carry out a specific risk assessment for expectant and new mothers arising from any working conditions, processes, and physical, biological or chemical substances. If the assessment reveals a risk, you must do everything reasonable to remove it or prevent the employee’s exposure to it. You must also give the employee information on the risks and what action has been taken or needs to be taken. It is a legal requirement for employers to regularly review risks in the workplace.
Considering requests for additional breaks
If you are going to consider any requests for additional breaks, you must do so objectively and reasonably against the likely impact any changes may have on your business. In any event, you should take care not to discriminate against breastfeeding employees. If you cannot grant additional breaks, you should think about extending the employee’s usual breaks, such as a mid-morning tea break, or leaving a little earlier in the day to minimise disruption to your business.
Use of flexible working
Employees have the statutory right to ask to work flexibly after 26 weeks’ employment service for any reason. However, changes surrounding breastfeeding at work are likely to be temporary, and therefore a permanent change to an employment contract, as would be the case with a flexible working request, would not be appropriate.
Discrimination
An outright refusal to allow a breastfeeding employee to express milk or to adjust their working conditions which lets them continue to breastfeed could amount to unlawful discrimination. However, if the request has been considered objectively, discussed with the employee, and you still cannot accommodate any additional breaks without there being an unacceptable impact on the business, it is much less likely to constitute indirect sexual discrimination.
