EasyJet cabin crew win landmark indirect sex discrimination case
Ambacher and McFarlane v Easyjet
EasyJet cabin crew win landmark indirect sex discrimination case regarding breastfeeding
The Law
Firstly, all employers should be aware of the rights and obligations established in relation to breastfeeding, which were in place even before this latest potentially landmark ruling:
- Regulation 25(4) and 25(5) of the Workplace (Health, Safety and Welfare) Regs 1992 requires 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 classed as “suitable facilities”.
- The Equalities and Human Rights Commission Code reminds employers to remember their duty of care to undertake risk assessments and remove any hazards for breastfeeding employees and recommends that employers try to accommodate employees who wish to take time off to breastfeed.
- The right not to be discriminated against on the grounds of sex, or on the grounds of pregnancy/maternity. This does not just mean treating a woman less favourably because of her sex or because she is pregnant and/or on maternity leave (direct discrimination) but as this case demonstrates, there is the potential for indirect discrimination to occur when employment policies and practices (normally referred to a “pcp” – policy, criterion or practice) do not adequately address this issue.
This tribunal ruling may now mean that employers will have to make better arrangements for female staff who are breastfeeding.
Please Note: Employment tribunal decisions do not have binding effect on future tribunals, BUT they can be persuasive and be used by judges to interpret the matter going forward.
Background
Two EasyJet flight attendants, brought an employment tribunal claim against Easyjet after it failed to offer arrangements that they considered appropriate to enable them to continue breastfeeding when they returned to work after maternity leave.
The women first asked to work shorter 8 hour shifts, to allow them to express milk either side of their shift. The airline refused to reduce the pair’s hours on the grounds of health and safety stating it was “primarily for their own safety” because unforeseen delays could result in them working beyond eight hours. Instead, they were offered unrestricted duty days of 12 hours, which was not acceptable to the employees on medical grounds (the length of the shifts may have increased the risk of mastitis, a condition which causes breast tissue to become painful and inflamed).
Easyjet had not taken into account the medical advice of four GPS, nor undertaken its own risk assessment, nor obtained occupational health reports for the employees in question.
After the case was lodged, the airline offered both women ground duties for a period of six months. It was unwilling to extend that period because it said that the wish to breastfeed beyond that time was “a choice”. Unite union argued on behalf of the employees that by failing to provide a solution beyond six months, the airline was effectively making the decision for them.
Decision
The ET found that Easyjet had come up with a number of unworkable ‘solutions’ each of which involved the claimants suffering a significant detriment. It held that Easyjet had discriminated against the claimants indirectly on grounds of their sex.
The judge found that Easyjet should have reduced the breastfeeding mothers’ hours, found them alternative duties or suspended them on full pay.
Comment: If you have new mothers returning to work and they have indicated the wish or need to breastfeed then please be aware of your legal obligations and try to accommodate it to ensure you don’t find yourself in the same position as Easyjet.
For further advice on how to support breastfeeding mothers in the workplace go to this website: click here
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