The claimant was employed by the respondent as a teacher.  The claimant commenced a period of maternity leave in 2018 and returned to work in January 2019.  At that point she continued to breastfeed her child.  As a result, the claimant’s partner was permitted to bring the baby into the school for the claimant to breastfeed.  She became pregnant again and had another period of maternity leave returning in September 2020.   It was a shorter period of maternity but the claimant did outline that she felt it would be an easier transition by virtue of being at the beginning of the academic term.

The claimant made a flexible working application based upon her return from her second maternity leave.   This went into detail about the amount of work going into breastfeeding and working fewer days would help bonding with the baby and breastfeeding.   However, there was no mention of having a room to breastfeed in at school or to express.  It is for this reason that it was not considered at that point.   The Tribunal found that not considering it at that point was unreasonable. In June 2020, the claimant wrote to the respondent to arrange a Keeping in Touch day. In that letter she made the respondent aware of the fact she will still be breastfeeding and she would like something in place should she need to feed the baby.  She also stated that she may need a room to express milk in.

The claimant’s line manager had a conversation with her in July 2020.  The line manager (who had left the respondent’s employment between this and the hearing and did not give evidence) stated it would not be possible to bring the baby into school for the claimant to feed them.  This was due to Covid-19 restrictions.  On return to work, the claimant raised the issue of needing a room to express milk.   Due to Covid restrictions staff were told that there would be ‘free rooms’ but the claimant was never informed of which rooms were available.  As a result, the claimant felt that she had to express her milk either in the toilets or in the car park.   She also outlined that she had to take time off with mastitis, which is an inflammation of the breast tissue which can arise from the build-up of milk.  There were also situations, as found by the Tribunal, where there was leakage and this could cause some embarrassment for the claimant.  Additionally, the claimant put forward that she was not provided any storage facilities for the milk, such as a fridge.  Whilst the Health Visitor had advised that it would be safe to store the milk in a bag for the rest of the school day this did cause some difficulty.

On the issue of direct and indirect sex discrimination, the Tribunal found that breastfeeding was a sex specific practice and that the case law is clear that the practice must be capable of being meaningfully applied to both women and men.  However, it was found that there was harassment on the basis of sex considering that no room was made available for the claimant and she felt forced to express milk either in the toilets or out in the car-park.  It constituted harassment considering that the Tribunal found that the toilet could be unhygienic and it could be ‘mortifying’ as put by one of the respondent’s witnesses.   Additionally, it could be humiliating if people were to walk past in the car park.  As a result, the harassment claim was successful.

Practical Lessons

This is an interesting case relating to the need to provide facilities for a breastfeeding woman.   The difficulty arising here was that the respondent had assumed that the claimant would be aware of particular rooms when this was not the case.  The claimant raised the need for a room on multiple occasions yet there was no real plan put in place.  Employers should be cognisant of women returning from maternity leave and the facilities that may be required to accommodate those who are still breastfeeding.   A private sanitary place was not provided in this case and it amounted to harassment considering the steps that the claimant felt forced to take.

https://www.gov.uk/employment-tribunal-decisions/ms-t-mellor-v-the-mfg-academies-trust-1802133-slash-2021