Failure to understand your obligations in relation to employees returning from maternity leave can lead to all sorts of problems, from discrimination and detriment claims to health and safety breaches which may give rise to negligence claims.

The recent case from the European Court of Justice, Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social, provides a reminder about the risks UK employers may face if these issues are ignored. The case concerned a sex discrimination claim brought by a nurse who worked in the A&E department of a Spanish hospital. The nurse's employer had conducted a risk assessment for her as a breastfeeding worker, concluding that her work was "risk-free" but without giving any substantial explanation as to why this was the case. The nurse raised concerns regarding certain aspects of her working conditions and the effects that these may have on her breastfeeding. In particular, she said that she was worried about the complex shift system in place and her potential exposure to ionising radiation, as well as healthcare associated infections and stress. Her request to change her working pattern for her to continue breastfeeding was turned down. She claimed that the risk assessment did not comply with European law, in particular the EU Directive prescribing measures to improve health and safety for pregnant and breastfeeding workers which requires employers to undertake a risk assessment.

The European Court decided that, where a breastfeeding mother can show that a risk assessment was defective or not done, the worker concerned is deprived of the protection they should receive under the Directive. Accordingly, such failure must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and consequently constitutes direct discrimination on the grounds of sex. It would then be for the employer to prove that the risk assessment had been conducted in accordance with the requirements of the Directive and that there had, therefore, been no discrimination. Importantly, this includes an assessment of the specific risks arising from each worker's particular role and working conditions.

So what are the requirements under UK law as regards breastfeeding at work?

Carry out a risk assessment - Health and safety regulations set down special duties that apply in respect of new or expectant mothers in the workplace. These rules bring the requirements of the Directive into UK law. The law requires an employer to assess the workplace risks posed to new and expectant mothers or their babies, and do what is reasonably practicable to control those risks. It's important not to wait until an employee becomes pregnant before carrying out this assessment. So any employer that employs women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby, from any processes, working conditions or physical, chemical or biological agents, must include an assessment of those risks in its risk assessment. HSE guidance lists examples of possible risks including stress (including post-natal depression), mental and physical fatigue (long working hours), travelling, temperature, working with VDUs, excessive noise, handling chemicals, movement and postures, shocks and vibrations. The guidance refers directly to the European guidance under the Directive. A further individual risk assessment should also be done once the employer is notified that a specific employee is pregnant, has given birth in the previous six months, or is breastfeeding following her return to work.

Adjust hours or conditions – Once on notice that the employee is breastfeeding following her return to work, the law requires an employer to alter the employee's working conditions or hours of work to avoid any significant risk, and where it is not reasonable to alter working conditions or hours, or if doing so would not avoid the risk, to offer suitable alternative work on terms that are not "substantially less favourable". If such adjustments are unreasonable or would fail to minimise the risk, the worker should be suspended from work with pay for as long as is necessary to protect her safety or health or that of the child.

Provide suitable facilities - Health and safety regulations require employers to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks. Toilets are not "adequate facilities". Although these regulations do not require the provision of dedicated facilities for breastfeeding or expressing milk, HSE guidance recommends that facilities such as a private, clean environment, other than the toilets, for expressing milk and a dedicated fridge for storing it, should be provided.

How should an employer react to a request for flexible working in order to breastfeed?

There is no statutory time off for breast feeding so a woman wanting to continue breast feeding after returning to work may request to work flexibly, such as working part time or working different or lesser hours. There is a statutory procedure for considering requests to work flexibly but there is no automatic obligation on the employer to grant the request. However, failure to accommodate such a request may put the employer at risk of breach of the flexible working legislation and/or more seriously an indirect sex discrimination claim unless the employer can justify its decision.

The EHRC Code also gives an example of a request by a woman to return from maternity leave part time to enable her to continue breastfeeding her child who suffers from eczema. Having told her employer that her GP had recommended she continued breastfeeding as it would benefit her child's health condition, a refusal to accommodate this request would be indirect sex discrimination unless it could be objectively justified.

Implications of this case for employers

This case highlights the importance of carrying out a proper individual risk assessment where women of child bearing age are employed. Many employers carry out the assessment when the employee informs them of her pregnancy. However, the duty is ongoing so the employer should ensure that where a woman informs her employer of her wish to breastfeed after return from maternity leave, another risk assessment personal to her individual circumstances is undertaken.

Where the employer fails to make a proper risk assessment in respect of a woman wanting to breastfeed on return from maternity leave, as in this latest European Court case, it would appear that the employee could have a claim for direct sex discrimination. That would be in addition to any indirect sex discrimination claim she may have (see above). This is interesting because section 13(7) of the Equality Act 2010 specifically precludes a claim for direct sex discrimination in the workplace where a woman is treated less favourably because she is breastfeeding (watch this space as to whether this section will be abolished), however, other claims for pregnancy or maternity discrimination (which are generally restricted to unfavourable treatment during pregnancy or maternity leave) or a claim for unlawful detriment (such as failing to risk assess regarding breastfeeding) are not excluded. A direct sex discrimination claim might be easier for an employee to bring because, unlike indirect discrimination, direct discrimination claims do not enjoy the benefit of the justification defence.

Making the return to work from maternity leave easier and more inviting

A desire to continue to breastfeed can discourage employees to return to work after maternity leave ends. There are many reasons why a woman might not want to return to work, but an employer can make the return from maternity leave easier and more inviting by taking a few simple steps:

  • Encourage a culture that supports working parents and trains staff and, in particular, line managers on practical ways of doing this
  • Have clear and accessible policies in place on maternity leave, flexible working and breast feeding
  • Encourage employees and their line managers to keep in contact during maternity leave so any concerns can be picked up and discussed at an early stage

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.