Two EasyJet flight attendants brought an ET claim for indirect sexual discrimination against their employer for failing to offer arrangements that would enable them to continue breastfeeding once they returned to work from maternity leave. Their request for 8 hour days to allow them to express their milk on either side of their shifts was refused on alleged health and safety grounds; EasyJet stated that unforeseen delays would likely see them both working longer hours.
EasyJet offered them unrestricted duty days of 12 hours, ignoring the fact that this could have increased the risk of mastitis, a condition which can result in infection and inflammation of milk ducts. They further failed to consider the medical advice of four GPS, carry out their own risk assessment or obtain occupational health reports for the two employees.
They offered ground duties for six months but failed to offer a solution past this point, arguing that breastfeeding beyond this time was a choice. The employees successfully argued that EasyJet failing to provide the employees with a more long-term solution meant that they were taking the choice away from them.
The ET found that, by offering unworkable solutions to the claimants which would have caused them significant detriment, EasyJet had discriminated against them indirectly on grounds of their sex. The judge found that EasyJet should have reduced their hours, found them alternative duties or suspended them on full pay.
It is important that airlines and other atypical workplaces take notice of this ruling and consider their own practice and policies. Although this decision is not binding, it may hint at how employment tribunal judges will interpret the law in the future. Further, it highlights how important it is for employers to be aware of their rights and obligations in relation to breastfeeding. These include:
- Providing suitable facilities (not toilets) for breastfeeding mothers to rest and to provide adequate rest and meal breaks;
- To undertake risk assessments and remove hazards for breastfeeding employees and to try to accommodate employees who wish to take time off to breastfeed; and
- To not discriminate against employees on the grounds of sex or pregnancy and maternity, as this case demonstrates.