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Failure to provide private room for employee to express milk amounts to discrimination and harassment

In the recent case of Mellor v The MFG Academies Trust, the tribunal had to consider the effect of how an employee had been treated following numerous requests for a room to enable her to express breastmilk whilst at work.

In July 2020 Ms Mellor, a teacher, returned to work from maternity leave. Before going on maternity leave, before returning to work, and upon her return to work, she requested for a room in which she would be able to express milk whilst at school. A room was not provided and subsequently she ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets and trying to eat her lunch at the same time. Ms Mellor brought claims of indirect and direct discrimination and harassment, on the grounds of sex.

Judge Miller found that Ms Mellor genuinely and reasonably had no choice but to use the toilets or her car to express. Ms Mellor was found to have made her employer aware on numerous occasions, but no request was authorised, and no room was provided.

On the claim of harassment, Judge Miller found in favour of Ms Mellor, making it clear that the conduct did have the effect of creating a degrading or humiliating environment for her. This was on the basis that a woman who has recently given birth should not be subjected to these circumstances. The Judge also concluded that the claimant was forced to express in the toilets because she reasonably and genuinely felt compelled to act in this way to avoid being seen by others, expressing uncontrollably, or developing mastitis. Thus, 'forced' was interpreted to include leaving someone with no realistic choice but to take a particular course of action and it was decided that it must be read in conjunction with unwanted (namely expressing milk in the toilets while eating lunch which was very uncomfortable, and clearly not something she ordinarily wanted to do).

Her claims of discrimination, however, failed. Direct discrimination was dismissed as the failure to provide a room was determined to be caused by administrative incompetence, rather than on the basis of her sex, and indirect discrimination was dismissed because, under the Equality Act 2020, the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest, this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.

Whilst only a first instance decision and therefore not binding, the case is a useful refresher of the tests applied by tribunals in discrimination and harassment claims. The case doesn't mean that an employer's failure to provide facilities to breastfeed or express milk can never be direct or indirect sex discrimination, and indeed on different facts, a different outcome could have been reached.

The case is a reminder for employers to strive for best practice across the organisation to support women who are pregnant and upon their return to work following a period of maternity leave.

For more information contact Alice McKenna in our Employment & HR department via email or phone on 01254 222373. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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