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There are a number of issues and risks that employers of women who are pregnant, on maternity leave, or returning to work following maternity or share parental leave need to be aware of.

In last week’s blog we discussed issues of potential sex discrimination when offering enhanced Shared Parental Leave terms to expectant mothers but not to fathers. Another important issue that employers should think about are the particular responsibilities they have towards women who are breastfeeding. Although there is no free-standing right to time off for breast feeding, breastfeeding mothers have a number of legal protections.

In a widely reported ruling in the case of McFarlane and  Ambacher v easyJet Airline Company Ltd the  Bristol employment tribunal last month upheld claims by two members of Easyjet’s cabin crew who claimed that they had suffered indirect sex discrimination when their requests for altered working hours to accommodate their breastfeeding were denied. 

Facts

EasyJet operates a roster system for its crew in terms of which there is no restriction on the length of the day the crew member can be required to complete, and they may be required to work more than 8 hours continuously .On advice from their GPs, Cynthia McFarlane and Sara Ambacher, two crew member who were breastfeeding following return from maternity leave, made flexible working  requests that their shifts be limited to 8 hours, allowing them to express milk before and after their work, as expressing milk during their shifts was not possible.  

Easyjet rejected these requests. The eventual counter-proposal from Easyjet was an offer to both women of ground duties for 6 months, working unrestricted 12 hour days. It was reported that Easyjet refused to consider extending ground duties beyond 6 months because they considered that continuing to breastfeed after this time was a “choice”.

The crew members raised claims of inter alia indirect sex discrimination on the basis that the approach to rostering created a particular disadvantage for women as compared to men and that the crew members were or would be put to that disadvantage.  Easy jet sought to resist the claims arguing that in refusing the requests they were pursuing a number of legitimate aims including ensuring the airline could deliver its flying schedule and avoiding flight cancellations and that  their stance was  a proportionate means of achieving these for a number of reasons,  including that disruptions that they had no influence over were common and could prolong shifts, that “bespoke” rosters had been tried in the past and had not worked, and that there was an unavailability of shorter routes for the women to fly on. 

It was argued on behalf of the crew members that working for 12 hours would pose significant risks to the health of the women, for example by increasing the risks of the breastfeeding infection, mastitis, and of painful engorged breasts. 

The tribunal found that the advice of two different GP practices that their working hours should be restricted was disregarded by Easyjet. There was also a failure to carry out a risk assessment despite Easyjet having a dedicated team responsible for health and safety.

The tribunal found in favour of the crew members, concluding that they had been put at a particular disadvantage and accordingly suffered indirect discrimination as a result of Easyjet’s failure to limit their hours. It took into account that Easyjet failed to produce actual evidence of difficulties caused by bespoke rotas, and that the evidence on flight disruption was limited. On the other hand the employees were able to present clear evidence of the increased risk of mastitis as a result of Easyjet’s approach.

Comment

The case appears to have involved certain somewhat emotive elements related to the rights of women to breastfeed and indeed to choose how long they do so.  UNITE called out EasyJet for describing breast feeding as “a globally recognized human right” when it came to passengers but not applying this to its cabin crew. Neither crew member has been willing to specify to Easyjet for how long they intended to breastfeed resulting in Easyjet arguing that they were therefore being asked to agree to arrangements that could potentially last “for years”, which perhaps seems unlikely.  The Tribunal did not appear to accept that it was legitimate for an employer to ask how long a woman proposed to breastfeed or to seek to impose any limitations on this stating that “it is a personal decision which only a mother can take.” These debates will continue.

What the case also clearly shows is the very significant challenges for employers in arguing that arrangements which disproportionately impact women are justified as “a proportionate means of achieving a legitimate aim”. The Tribunal found that Easyjet had failed to produce compelling evidence that bespoke rosters would cause serious operational difficulty and instead was seeking to rely upon “speculation”. In a (perhaps foreseeable) reversal, Easyjet’s defence was undermined significantly when a witness who has said in in her statement that “a high volume of bespoke rostering arrangements would restrict flexibility to manage supply and demand”  accepted in questioning  that  a low volume of such arrangements would not do so.  The Tribunal therefore concluded that “the reality was that there was nothing preventing implementing a bespoke roster”.

Beyond the indirect discrimination point the case also highlights important related protections for breastfeeding employees including the obligation to carry out risk assessments under the Management of Health and Safety at Work Regulation 1999 and the separate obligations under the Employment Rights Act where risks to breastfeeding employees arise to either temporarily alter the employee’s working conditions or hours  to avoid the risk , to offer suitable alternative work or if none is available to suspend the employee on full pay for as long as is necessary to avoid the risk.

UNITE made the contentious claim that, by limiting the offer of ground work to 6 months, Easyjet were essentially making the decision to stop breastfeeding on behalf of the two women. The Tribunal did however criticise Easyjet for not offering the ground duties at an earlier stage or extending these duties and not having provided the employees with any work Easyjet were deemed to have suspended them without having paid them properly for this period.

Issues concerning pregnancy, maternity, and return to work are often complex and fact specific, and if you have any queries or concerns about these matters, please get in touch with one of the members of our employment team.

Eric Gilligan, Partner and Annika Neukirch, Solicitor

Chambers UK 2018

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