EasyJet rosters indirectly discriminated against breastfeeding mothers

EasyJet’s refusal to allow two members of cabin crew to restrict their hours so that they could continue breastfeeding amounted to indirect discrimination on grounds of sex.

Speedread

EasyJet’s refusal to allow two members of cabin crew to restrict their hours so that they could continue breastfeeding amounted to indirect discrimination on grounds of sex. The employment tribunal rejected easyJet’s argument that its policy was objectively justified by its need to ensure it could deliver its flying schedule and to avoid flight delays and cancellations. EasyJet had not identified any actual examples of where granting bespoke individual rotas had caused it any difficulty.

The employment tribunal also ruled that the employees had been suspended on maternity grounds during periods when they were not working and should have received full pay during these periods.

Facts

In McFarlane and Ambacher v easyJet Airline Company Limited, two members of easyJet’s cabin crew claimed that easyJet’s refusal to restrict their continuous working hours to 8 hours per shift was indirectly discriminatory on grounds of sex. They wished to continue breastfeeding upon their return to work from maternity leave and there were no opportunities to express milk whilst they were on shift. Both employees obtained fitness to work certificates from their GPs, indicating that there was an increased risk of mastitis if they were not able to express milk and recommending that shifts should be no longer than 8 hours, in order to manage this risk.

EasyJet refused the employees’ request to limit their shift to 8 hours. Eventually it offered them ground duties but prior to this they had periods of sickness absence and unpaid leave.

The employees claimed indirect sex discrimination. They also claimed that easyJet had suspended them on maternity grounds during periods when they were not working and should have paid them in full whilst suspended.  It should also have offered them alternative work earlier.

Decision

The employment tribunal upheld their claims.

EasyJet’s refusal to limit shifts to 8 hours created a particular disadvantage for women and put the claimants at that disadvantage. They either had to work a normal roster (which effectively mean they had to stop breastfeeding) or continue breastfeeding but suffer a financial disadvantage. EasyJet argued that its policy was objectively justified by its need to ensure it could deliver its flying schedule and to avoid flight delays and cancellations. The employment tribunal disagreed. EasyJet had not identified any actual examples of where granting bespoke individual rotas had caused it any difficulty. On the other hand, the claimants were able to produce evidence of the increased medical risk of being prevented from expressing milk after periods of 8 hours.

The employment tribunal also ruled that the claimants had been suspended on medical grounds because they had not been offered work for a period of time. They were entitled to be paid whilst suspended. It also agreed that easyJet should have offered the claimants ground duties sooner.

It awarded the claimants £8,750 and £12,500 for injury to feelings, together with financial losses.

Implications

Employers need to give proper consideration to requests from employees to work flexibly to accommodate breastfeeding and expressing milk. If they refuse a request, they should document their business reasons for doing so, the alternatives they have considered and the reasons for rejecting those alternatives. They should also ensure they have the evidence to back this up. EasyJet appeared to assume that giving these employees bespoke rosters would cause operational difficulties but had no evidence to support this.

The Equality and Human Rights Commission Code of Practice recommends that employers try to accommodate employees who wish to take time off to breastfeed and guidance from the Health and Safety Executive recommends that employers should provide a private clean environment for expressing milk and a fridge for storing it.