Expressing milk at work – What does the law say?
A recent study by Slater and Gordon has revealed that a third of mothers who return to work have no option but to use staff bathrooms to express milk, highlighting the lack of suitable facilities for breastfeeding mothers in the workplace. With this in mind, it is important to take a look at the legal obligations placed on employers as well as evaluate recommended solutions from a best practice perspective.
In terms of statutory obligations, health and safety law only requires employers to provide suitable facilities for breastfeeding mothers to rest and lie down at work. Perhaps unsurprisingly, staff toilets will not qualify as an appropriate facility for rest and employees must be given access to a private room, with a lockable door and facilities for them to lie down.
Interestingly this obligation to rest is not extended to the act of breastfeeding or expressing milk, and employers are not duty bound to provide specific facilities for this. There is, however, best practice guidance in which ACAS encourage firms to provide these extra facilities to help staff feel more comfortable at work. This guidance also recommends providing separate storage facilities for staff to preserve breastmilk during the working day.
Aside from the statutory break periods under the Working Time Regulations (1998) there is also no requirement to provide extra breaks for staff to express milk at work. It will be up to each individual employer to decide whether to offer extra breaks and if staff will be paid for this time. Having said this, employees with 26 weeks’ service will be able to submit a flexible working request which employers have a duty to consider. A complete refusal to consider these requests, or discuss and accommodate a workable solution, could ultimately lead to claims of sex discrimination from disgruntled employees or, potentially, claims of constructive dismissal.
Instead, from a good practice perspective, employers are advised to hold discussions with an employee on her return from maternity leave to determine what can reasonably be done to prevent her from suffering any disadvantage at work. It is important to consider each request individually and fairly by carrying out an assessment on the steps proposed, rather than unilaterally determining it is unworkable.
Whilst smaller enterprises may argue that they do not have the room or funding available to implement these best practice solutions, larger employers are unlikely to have this excuse. Given the current emphasis on increasing protections for women in the workplace, it would be wise to go above and beyond the statutory obligations when it comes to expressing milk at work. Although it may be an uncomfortable topic for some employers to discuss, failing to take reasonable action could have a detrimental impact on employee wellbeing and even lead to claims of discrimination in certain scenarios.