The easyJet flight employees, Sara Ambacher and Cynthia McFarlane, had requested to be allowed to work eight hour shifts to enable them to express milk before and after their shifts; however, easyJet refused the request, citing health and safety grounds.
The airline claimed that unforeseen delays could see both women working longer hours and instead offered them standard 12-hour duty shifts that could have seriously impacted the women’s health, as delays in breastfeeding or expressing milk can lead to painfully engorged breasts and mastitis.
Managers were accused of simply googling ‘breastfeeding risks’ before presenting a series of unworkable solution to Ambacher and McFarlane. According to the union Unite, which represented the women at the tribunal, easyJet had ignored the medical advice of four GPs and had failed to conduct a thorough risk assessment, despite having a dedicated health and safety unit.
The airline recognised the global human right of passengers to breastfeed, Unite said, but was not happy to extend the same consideration to its staff; instead, easyJet offered Ambacher and McFarlane ground duties for a fixed period of six months, stating that there would be no extension available as breastfeeding was ‘a choice’.
The Bristol tribunal’s decision is particularly significant when viewed in the light of a case earlier this September, this time against Flybe, for indirect sexual discrimination. Emma Seville won the right to work pre-arranged days to accommodate her child care arrangements, successfully arguing that female cabin crew were at a disadvantage compared with their male counterparts. In the case of Ambacher and McFarlane, easyJet was found to have breached the Employments Rights Act and discriminated against the two women by effectively limiting the time they could continue breastfeeding.
Nicky Marcus, Unite legal officer, called the case groundbreaking and said it had wider implications for all working women, particularly those in atypical workplaces. The days of having to give up breastfeeding when returning to work were over, Ms Lucas said, adding that Unite would be working closely with airlines to ensure that they adopted policies and practices in line with the ruling.
Although the ruling does not change the law or impose an obligation on employers, companies may now find themselves challenged on their policies and face more requests from breastfeeding mothers. The risk of indirect sexual discrimination can arise in any industry where working arrangements make it particularly difficult or impossible for women workers to breastfeed or express. These risks will be heightened in industries where the nature of the work, the duration of shifts or the work environment itself may make it difficult or unsafe to express during a shift.
In the light of the Ambacher and McFarlane and Seville rulings, employers should prepare themselves to implement policies and practices that do not indirectly discriminate against breastfeeding mothers or those requesting flexible working arrangements to accommodate childcare.
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