Personnel

Breastfeeding mother wins harassment case

Posted on May 5th, 2022

The recent case of Ms T Mellor v The MFG Academies Trust highlights the importance of providing suitable provision and support to enable mothers to breastfeed at work.

Ms Mellor was employed by The MFG Academies Trust (the trust) and worked at Mirfield Free Grammar School (the school) as a teacher of Citizenship. Her claims concerned her return from maternity leave in July 2020 and her requirement to express milk while at work. She brought claims of indirect sex discrimination, harassment and direct sex discrimination.

Legal background

The questions considered by the employment tribunal (ET) for each claim are detailed below.

Indirect sex discrimination

  • Did Ms Mellor make the trust aware that she required suitable facilities to express milk?
  • Did the trust apply a practice of not providing suitable facilities for women to express milk and for the storage of breast milk?
  • If so, did this amount to a provision, criterion or practice (a PCP) and did it place women at a particular disadvantage compared with men?
  • If so, was Ms Mellor put at a disadvantage?

Harassment

  • Did Ms Mellor make the trust aware that she required suitable facilities to express milk?
  • Did the trust subject Ms Mellor to unwanted conduct by forcing her to express milk in the toilet and/or car park?
  • Did this conduct have the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
  • Was the conduct related to her sex?

Direct sex discrimination (less favourable treatment because Ms Mellor was breastfeeding)

In deciding this, the ET also considered European Union law, in particular The Equal Treatment Directive (2006/54/EC) and the Pregnant Workers Directive (92/85/EC).

  • Who would be the comparator for the purposes of the claim? Ms Mellor relied upon a hypothetical male comparator requiring a private space such as for medication purposes.
  • Did Ms Mellor suffer less favourable treatment compared with that comparator?
  • Was the reason for the less favourable treatment due to Ms Mellor breastfeeding?

Details of case

On 16 March 2020, before starting maternity leave, Ms Mellor sent a letter to the chair of governors and the executive principal of the trust. In the letter, she requested a reduction from full time to three days a week, as well as access to a room to enable her to express regularly. The director of HR at the school and the principal of the school both said that they had not seen this letter until it was presented at the ET. The director of HR at the school did state, though, that the flexible working request had been communicated to her in conversation with the executive principal.

A flexible working form was subsequently completed by Ms Mellor requesting a change in working hours, but there was no information on it relating to the need to express or breast feed during working hours. The director of HR at the school said that she would have expected Ms Mellor to put her request in the form or to speak with her about it. The ET considered that this was not a reasonable expectation that Ms Mellor should do this, given she had informed the trust of her need relating to expressing milk in her letter of 16 March 2020.

On 21 May 2020, Ms Mellor’s request to work three days per week was confirmed and on 19 June 2020, Ms Mellor wrote to the trust confirming her return-to-work date, and to arrange a keeping in touch (KIT) day. In the letter, she states that she may need to feed her baby at lunch time during her first week back to school and that she may need a room to express in. Ms Mellor was told by her line manager that she would not be able to breast feed her baby on site and the director of HR at the school confirmed that she would not be able to breast feed her baby on site, due to COVID-19 restrictions. At the ET, the director of HR at the school stated that Ms Mellor’s line manager had not mentioned anything in relation to Ms Mellor requiring a room to express. Unfortunately the line manager did not attend the ET to give evidence. Therefore, on considering the evidence available, the ET found, on the balance of probabilities, that Ms Mellor did not explicitly refer to a need for a room in which to express on her return to work in the conversation with her line manager.

ET findings

Indirect sex discrimination

  • Did Ms Mellor make the trust aware that she required suitable facilities to express milk?
    • The ET found that Ms Mellor had made the trust aware, on a number of occasions, that she needed suitable facilities to express milk.
  • Did the trust apply a practice of not providing suitable facilities for women to express milk?
    • The ET found that the trust did not provide Ms Mellor with suitable facilities for expressing milk and that it was not adequate for the trust to say that Ms Mellor could just have gone and used a room.
    • Ms Mellor made repeated requests for a room, therefore, there was a sufficient degree of repetition for this to amount to a practice.
  • Did the trust apply a practice of not providing suitable facilities for the storage of breast milk?
    • The ET found that Ms Mellor did not demonstrate that she requested a fridge and that one was subsequently not provided.
  • If so, did this amount to a provision, criterion, or practice (a PCP) and did it place women at a particular disadvantage compared with men?
    • The ET found that the failure to provide expressing facilities amounted to a practice and, therefore, a PCP.

However, although the practice puts women at a disadvantage compared with men, the case law is clear that the practice must be capable of being meaningfully applied to both women and men for a comparative disadvantage to arise. Therefore, the ET held that Ms Mellor’s claims for indirect discrimination were unsuccessful.

Harassment

  • Did Ms Mellor make the trust aware that she required suitable facilities to express milk?
    • The ET referred to the previous decision under indirect discrimination.
  • Did the trust subject Ms Mellor to unwanted conduct by forcing her to express milk in the toilet and/or car park?
    • The ET found that Ms Mellor genuinely and reasonably had no choice but to use the toilets or her car to express milk.
    • The ET found that, because she genuinely felt compelled to act in a way that she did not want to, she was effective forced to do so.
    • The ET, therefore, concluded that the trust subjected Ms Mellor to unwanted conduct by forcing her to express milk in the toilet and/or car park.
  • Did this conduct have the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
    • The ET found that the conduct of the trust had the effect of creating a degrading and/or humiliating environment for Ms Mellor.
  • Was the conduct related to her sex?
    • In the ET’s view, it was. The need for privacy arises from the intimate nature of the activity and because Ms Mellor is a woman.

The ET concluded that by being ‘forced’ to breastfeed in a toilet or car, which risked exposure of intimate body parts in public, was inherently related to the fact that Ms Mellor is a woman. For these reasons, the ET found that Ms Mellor’s claim of harassment was successful.

Direct discrimination (less favourable treatment because Ms Mellor was breastfeeding)

  • Who would be the comparator for the purposes of the claim?
    • The ET agreed with Ms Mellor that a hypothetical male comparator requiring a private space, such as for medication purposes, was an appropriate comparator.
  • Did Ms Mellor suffer less favourable treatment compared with that comparator by:
    • Being forced to express milk in the car park.
    • The trust’s failure to provide suitable facilities for expressing.

For the reasons set out under harassment, it was the ET’s judgment that Ms Mellor was subjected to less favourable treatment than would have been afforded to the male comparator.

  • Was the reason for the less favourable treatment due to Ms Mellor breastfeeding?
    • The ET stated that Ms Mellor needed to show some facts from which they could conclude that the reason for her not being given a room in which to express was because she was a breastfeeding woman.

On balance, the ET concluded that the reason Ms Mellor was not provided with a room in which to express was administrative incompetence, rather than because she was a woman. Therefore, her claim of direct discrimination was unsuccessful.

Summary and advice

The amount to be awarded to Ms Mellor with regards to her successful claim of harassment is still to be determined at a remedy hearing.

Employers have certain legal obligations to breastfeeding mothers. Workplace regulations require employers to provide suitable facilities where pregnant and breastfeeding mothers can rest. Employers also have an obligation to carry out an individualised risk assessment for new and expectant mothers. In addition, the Health and Safety Executive (HSE) recommends that it is good practice for employers to provide a private, healthy and safe environment for breastfeeding mothers to express and store milk. Further HSE advice can be found on their website Protecting new and expectant mothers at work.

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