With breastfeeding being such a current and controversial topic within the media, any female employee would expect their employer to understand their decision to breastfeed their new baby, even if returning to work.
Despite this, it has been reported that in a recent case in the employment tribunal, Easyjet were found to have indirectly discriminated against two female members of staff on the grounds of sex. Both of these women had requested shorter shifts to allow time to express their breast milk either side of a shift.
Although both females provided their employer with medical evidence from their GP, their requests were rejected They were apparently further advised by their employer that breastfeeding after six months was in fact a choice, not essential.
Sex is a protected characteristic under section 4 of the Equality Act 2010.
Section 19 of the Equality Act 2010 states that indirect discrimination occurs where an employer applies a ’policy, criteria, or practice’ (‘PCP’) to everyone, but that this PCP can put someone with a particular characteristic at a disadvantage.
In this particular case, it is reported that both members of staff were deemed to have suffered indirect sex discrimination under s19 as a result of three different PCPs in place that meant which meant that they could not alter their shifts to accommodate nursing their newborn children. The females argued that men would not have been disadvantaged by these PCPs as they had been.
An employer may have a defence to an indirect discrimination claim if they can demonstrate that they had a legitimate aim. In this case, the employer argued that they needed to avoid individual rostering arrangements. This defence was rejected by the employment tribunal.
This ruling could result in an increase in female employees exercising their wish to continue to breastfeed their new born children and go back to work, not feeling as though they have to choose one or the other.
If you feel that you have been discriminated against on the above basis please contact our specialist discrimination and employment departments for further information and advice on 0175 321 6399.