Do employers have to provide facilities for employees to express breastmilk?

Failure to provide facilities for expressing breastmilk amounted to sex harassment

An employment tribunal has ruled that a school’s failure to provide a teacher with a private room to express breastmilk amounted to harassment related to sex. As a result of the school’s failure the teacher was forced to express in the toilets or her car.

Request for private room to express milk

Before returning from maternity leave, Ms Mellor informed the school that she was still breastfeeding her baby and would need a private room to express her breastmilk. Despite reminders, the school failed to provide this. As a result, she expressed her milk in either the toilets or her car. She mainly used the toilets as it was cold in her car and she did not want to risk being seen by the pupils. As she only had a 25 minute lunchbreak she usually sat on the toilet floor and ate her lunch while expressing her milk.

Ms Mellor brought claims of direct and indirect sex discrimination and sex harassment against the school. The employment tribunal upheld the sex harassment claim but dismissed the claims for direct and indirect sex discrimination.

Sex harassment

Sex harassment occurs where a person engages in unwanted conduct related to sex which has the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The employment tribunal found that Ms Mellor genuinely and reasonably had no choice but to use the toilets or her car to express. The school's conduct (of forcing her to express milk in the toilets while eating lunch and/or in her car with the risk of being seen by pupils and others) was unwanted conduct. While the school had not intended to violate her dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her, the tribunal found that the school’s conduct did have this effect and that it was reasonable for it to do so. Ms Mellor found having to sit on the toilet floor to express milk and eat her lunch unhygienic and disgusting and one of the  school’s witnesses considered it “mortifying”. The fact that she might be seen expressing her milk in her car was also potentially humiliating.  

The tribunal went on to rule that the conduct was related to sex. The need for privacy arose from the intimate nature of the activity and because Ms Mellor is a woman. The risk of exposure of intimate body parts in public and the length of time taken to express were inherently related to Ms Mellor being a woman.

What does this mean?

While the law does not expressly require employers to provide breastfeeding employees with facilities to breastfeed or express milk, there are discrimination/harassment risks if an employer fails to do so. Although the direct and indirect discrimination claims failed in this case, it is only an employment tribunal decision and so is not binding on other employment tribunals hearing similar cases. It is therefore possible that such claims could succeed on slightly different facts or before another employment tribunal. 

Acas guidance on Accommodating breastfeeding employees in the workplace recommends employers provide a private, hygienic, safe and secure area for an employee to express milk, such as an unoccupied office or an area used for meetings that can be discreetly screened. If this is not possible, the employer should discuss the issue with the employee to see if there is any alternative facility. The guidance goes on to state that it would be inappropriate to use toilets or sick rooms due to hygiene risks, something which is supported by the HSE guidance. In terms of storing breastmilk, the guidance recommends employees be allowed to use fridges in refreshment areas if there is one.

Employers might also consider having a policy to support breastfeeding mothers which could include:

• Additional breaks for mothers to express milk
• Provision of a clean, warm, private room for expressing
• A secure, clean fridge to store expressed milk
• Flexible working hours for breastfeeding mothers