373: Does failure to provide a private space for employees to express breastmilk amount to sex-based harassment?
There is no statutory right to facilities for breastfeeding or expressing milk at work. However, HSE guidance recommends that employers should provide facilities such as a private, clean environment (other than staff toilets) for expressing milk, and a fridge for storing it. In the recent case of Mellor v MFG Academies Trust, an Employment Tribunal (the Tribunal) held that failing to provide a private space for a teacher to express breastmilk at work was harassment on the grounds of sex, but did not amount to direct or indirect sex discrimination.
Ms Mellor, a teacher with the MFG Academies Trust, asked for a room to use to express breastmilk. She submitted written requests both prior to and on her return from maternity leave but no suitable room was provided. Ms Mellor therefore expressed milk either in her car or in the school toilets, usually using the toilet as it was too cold in her car and she was concerned about being seen. Since she had a 25 minute lunch break and expressing took 20 minutes, she would generally eat her lunch on the floor of the toilets whilst expressing. Ms Mellor brought claims of direct and indirect sex discrimination and harassment against the Trust.
The Tribunal agreed that Ms Mellor had been subject to harassment related to her sex. Forcing her to express in the toilets or her car, with the risk of being seen by pupils and others, had the effect of violating her dignity and of creating a degrading, humiliating and offensive environment for her.
As regards her direct discrimination claim, Ms Mellor relied on the hypothetical comparator of a man requiring a private space for medication purposes, such as a diabetic man needing a place to inject insulin and to store it. The school conceded that it would have provided facilities for a diabetic man to inject insulin. However, the Tribunal ruled that Ms Mellor had not suffered direct sex discrimination because the evidence showed that the reason for her less favourable treatment was the Trust’s administrative incompetence, not her sex.
In relation to the indirect sex discrimination claim, the Tribunal found that the school’s practice of failing to provide facilities to express breastmilk was a provision, criterion or practice (PCP). In order for the claim to succeed, the PCP needed to put Ms Mellor at a particular disadvantage compared to men. The Tribunal held that as biological males do not breastfeed or express milk, this PCP did not put women at a disadvantage compared to men. Denying a man the facilities to express breastmilk is effectively meaningless so no comparative disadvantage can arise.
The outcome of the direct and indirect sex discrimination claims in this case is somewhat unsatisfactory, although this is a first instance decision which may be appealed. The employer was effectively able to defeat the direct discrimination claim because of its own incompetence; and the Tribunal was restricted from reaching a different conclusion on indirect discrimination because of the impossibility of showing comparative disadvantage. This means that if the employee had not succeeded in her harassment claim, she could have been left without a remedy. In order to minimise the risks of similar litigation, employers should follow best practice and HSE guidance by ensuring that women returning from maternity have access to appropriate facilities and support.
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