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Airline indirectly discriminated against breastfeeding mothers

Background

The two Claimants were crew members who had recently returned from maternity leave and were still breastfeeding.

EasyJet’s roster system states that there is no restriction on the length of time an employee can work and that crew members may be required to work more than 8 hours continuously. Both Claimants made flexible working requests so that they would not be rostered to work for more than 8 hours on the advice of their GPs so as to manage the breaks between breastfeeding or expressing milk.

EasyJet refused the requests. Although EasyJet did give the Claimants ground duties, this was not immediate and the Claimants both had periods of sickness absence and unpaid leave.

Decision

The Employment Tribunal held that the Claimants had been indirectly discriminated against on the grounds of their sex.

Indirect discrimination occurs where an employer to has a policy, criteria or practice (“PCP”) which is applied to all staff but puts a person with a protected characteristic at a particular disadvantage.

The Tribunal found that the roster pattern was a PCP which put the women at a particular disadvantage because they would;

  • have to stop breastfeeding or increase their risk of suffering from medical effects where they continued and worked a normal roster; or
  • continue breastfeeding but suffer financial disadvantage.

An employer will have a defence to a claim of indirect discrimination if it can show that the PCP is a proportionate means of achieving a legitimate aim.

EasyJet tried to justify the PCP by claiming that it had a legitimate aim to ensure that it could deliver its flying schedule, avoid delays and cancellations and comply with legal and regulatory requirements. However, the Tribunal did not consider the roster arrangement to be a proportionate means of achieving a legitimate aim and EasyJet could not demonstrate actual examples where granting bespoke rosters had caused it difficulty in meeting the stated objective.

The Tribunal also found that the Claimants were deemed to be suspended when they were offered no work and were therefore entitled to receive remuneration for that period.

The Claimants were both awarded compensation for the discrimination including sums of £8,750 and £12,500 each for injury to feelings.

Comment

Employers should remember that breastfeeding mothers will be protected under discrimination law. Employers will need clear and demonstrable evidence if they intend to show that a PCP which results in indirect discrimination is proportionate. If an employee requests flexible working to continue breastfeeding the employer should consider this carefully and if it is not possible to accommodate the request at least offer temporary suitable alternative work or paid suspension. Employers should also ensure appropriate steps are taken to accommodate the needs of breastfeeding employees in the workplace, including providing private and hygienic areas to breastfeed/express milk.

If you would like to speak to us about policies or discrimination issues, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

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