Failure to provide workplace facilities to express breastmilk

The Claimant, Mellor, was a teacher. When she returned from maternity leave in January 2019, the school (MFG Academies) permitted her partner to bring her baby to the school to breastfeed. She was provided with a private room to breastfeed, but not to express breastmilk.

In March 2020 Mellor was pregnant with another baby. She wrote to the school on several occasions that she would require a private room to express breastmilk on return from her maternity leave. No suitable room was provided. Mellor was instead forced to express in the toilets or in her car. As she had a 25-minute lunch break, and breastmilk expression took 20 minutes, she was forced to eat her lunch at the same time. She would generally sit on the toilet floor to express while she ate lunch.

Mellor submitted claims for direct and indirect sex discrimination and sex harassment.

Mellor’s claim for direct discrimination failed. Under S 13 (6)(a) of the Equality Act, it is direct discrimination to treat a woman less favourably because she is breastfeeding, although discrimination at work is expressly excluded from this section. However, the tribunal found this was not relevant to the case: the less favourable treatment was Mellor being forced to express milk in the carpark and the toilet. This was not related to a woman actively breastfeeding while at work. Therefore, the tribunal could consider whether Mellor’s treatment was discriminatory.

Mellor relied on a hypothetical comparator of a man requiring a private space for medication purposes, such as a man with diabetes who needed to inject insulin. The school conceded that they would provide a private space to such a man, but the tribunal found the reason they did not do the same for Mellor was because of administrative incompetence, not Mellor’s sex. On that basis her claim for direct sex discrimination failed.

Her claim for indirect sex discrimination also failed. Mellor claimed that not providing suitable facilities for women to express milk was a provision, criterion or practice which was indirectly discriminatory towards women. However, the tribunal noted that expressing breastmilk is an exclusively female practice. Under case law, the practice must be capable of being applied to both women and men for a comparative disadvantage to arise. Denying men facilities to express breastmilk would be effectively meaningless so there was no comparative disadvantage.

On the other hand, Mellor’s claim for sex harassment was made out. The tribunal found she had no choice but to express in her car or in the toilets; otherwise she would experience embarrassing leakage and potentially develop mastitis. Mellor’s evidence was that she found this degrading and unhygienic, particularly given the risk of being seen in public. Even one of the school’s witnesses described it as “mortifying”. Although the school did not intend to violate Mellor’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, it nevertheless had that effect. This was intrinsically linked to her sex; the need for privacy arose out of the intimate nature of the activity and because Mellor is a woman.

Even though Mellor was ultimately successful in one of her claims, the overall decision is in my view unsatisfactory.

The fact that an employer was able to avoid an allegation of direct discrimination by claiming incompetence is truly horrifying. This is particularly so in this case because the school admitted they would have provided suitable facilities to the hypothetical male comparator. The tribunal’s decision ignores that this situation could only arise because Mellor was a woman.

The tribunal was precluded from reaching a different decision on indirect discrimination by standing case law. Nevertheless it is certainly worth considering the impact. There are inherent differences in biological males and females, and there will inevitably be situations where women’s differences in particular make accessing the workplace harder. This case is a perfect example. The fact that not providing suitable facilities to express is not indirect discrimination because no men need to express breastmilk seems, to me, to be a gap that undermines the very purpose of the law.

Breastfeeding mothers who cannot access private spaces to express breastmilk will ultimately need to rely on sex harassment – but there may be situations where this will not give rise to a degrading or humiliating environment. Such a woman would, sadly, be without protection.

This blog was written by Kendal Youngblood, Solicitor at didlaw.