EasyJet recently found itself flying out of the Employment Tribunal (“ET”) with its head beneath its wings and a need to urgently review its treatment of breastfeeding employees.
The ET held that it was indirectly discriminatory to apply a blanket roster across an entire workforce, without making alternative arrangements for female employees who are breastfeeding and may be at risk of mastitis.
Both claimants were mothers who were members of easyJet’s cabin crew. EasyJet applied a blanket rule across its workforce that crew members may be required to work more than eight continuous hours. During their maternity leave both women asked for changes to their working patterns including shorter shifts, as they anticipated that they would still be breastfeeding on their return to work. Some changes were made but, despite medical evidence which recommended they should not work longer than eight hour shifts so that they could breastfeed or express milk without risk of mastitis, that request was not granted.
EasyJet refused the claimants’ requests on health and safety grounds, specifically that unforeseen delays may cause the claimants’ shifts to exceed eight hours. They continued working but were not paid if they opted out of shifts of over eight hours. Somewhat bizarrely, easyJet later found them both alternative jobs as ground operations staff doing even longer twelve hour shifts.
In making this decision easyJet ignored their employees’ GPs recommendations, did not refer them to occupational health and failed to carry out a risk assessment despite having an in-house team responsible for just this task.
Despite creating new roles for the claimants, easyJet’s actions were still found to be indirect discrimination as a result of failing to adopt bespoke rosters for the claimants; the blanket rule on workplace rosters applied to all cabin crew but put the women at a particular disadvantage in comparison to men.
The ET rejected easyJet’s attempts to objectively justify the disadvantage suffered by the claimants. It was not convinced that it was proportionate to have a blanket ban on bespoke rosters to minimise disruption to flights (having only seen evidence of two flight cancellations during a summer where there were 1,500 daily flights). Furthermore, easyJet’s admission that it already had some bespoke rostering arrangements which appeared to cause few problems and its apparent unwillingness to even consider the women’s requests went heavily against easyJet’s case.
The Equality Act is clear that treating a woman less favourably because she is breastfeeding is direct discrimination and this is something which public service-providers will already be familiar with. That provision does not apply in the workplace, but employers can face claims for indirect discrimination and are still obliged to undertake risk assessments and ensure suitable facilities are in place to accommodate breastfeeding mothers, although there is no right to time off work for breastfeeding. It is also clear from the decision in this case that where a mother continues breastfeeding until well after their baby’s first birthday, the decision when to end breastfeeding is the mother’s decision alone.
It may arise infrequently, but employers whose employees return to work while still breastfeeding need to be mindful of their obligations towards them. If a risk assessment deems a pregnant or breastfeeding mother as unfit to carry out her duties, then she should be suspended on full pay unless she can be offered suitable alternative work.
The easyJet case is also an important reminder that employers must be vigilant when setting policies and consider the potential impact on employees. Flexible working requests, whether formal or informal, should be considered with an open mind and there must be cogent and compelling justification for having a rigid policy which could have a disparate impact on any protected group.
Employers should take care to consider whether a strict policy is really necessary across the entire workforce, or whether there is scope for flexibility. In particular, it is worth noting that any proposed alternative solutions must address the discriminatory policy. In this case, failing to adopt bespoke rosters for the women was still indirect discrimination, despite easyJet creating new positions for the women.
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