Whilst there is no legal obligation for employers to have a formal breastfeeding policy, it is a good idea to have some official document referring to it. This can be either a stand-alone policy or part of the main staff handbook. It should give details of how to make a breastfeeding request and the process whereby consideration of that request will be given.
Support of colleagues – avoiding harassment
It is always good practice to inform other members of staff about a change to the working environment and a breastfeeding colleague is no different. Discussions can be held to advise relevant employees on the changes to the organisation and how they will affect job roles. An informed workforce will be more likely to understand the situation and there is then a reduced likelihood of adverse comments and behaviour that could be construed as harassment.
However, if such behaviour does occur, the employer needs to take action to ensure that there is no recurrence, as offensive banter and behaviour could be counted as unlawful harassment under the Equality Act 2010.
A breastfeeding employee may ask for a private, hygienic, safe and secure area where she can express milk. This could be an unoccupied office or an area used for meetings that can be discreetly screened. If in doubt, an employer should ask the employee what would be most appropriate. In any event it would be inappropriate to use toilets or sick rooms as there may be a hygiene risk. If, after careful consideration, an employer is physically unable to provide an appropriate space, they should discuss the issue with the employee to see if there is any alternative facility.
Most businesses have refreshment areas that contain a fridge or cool area. Employers should consider enabling expressed milk to be stored there, perhaps secured in a re-sealable container for hygiene purposes. It would be good practice to discuss storage preferences with the employee.
Making and considering requests
An employee may make a request to breastfeed at a KIT (keeping in touch) meeting. Alternatively, she may wait until she returns to work. The employer should advise on the preferred method and time of communication.
Requests should be considered reasonably and objectively, weighing them against the possible effect on the business. Employers should also take into account any evidence from occupational health, in-house health and safety personnel and medical reports.
If it’s not possible to allow additional breaks for breastfeeding employees, it could be possible to extend normal breaks or allow a slightly earlier departure, which could reduce business disruption.
Breastfeeding and flexible working
Under the Children and Families Act 2014, employees can ask their employer for flexible working for any reason. Such requests from employees who are breastfeeding will be temporary in nature and it would not be necessary to permanently amend their contracts of employment.
A flexible working request will give both employer and employee the opportunity to discuss the arrangements that need to be made. Adjustments could be made to working hours or conditions so that the employee can carry on breastfeeding – for example, a reduction in hours, extra breaks, not planning overnight business trips.
If an employer feels that a flexible working request should be refused, they need to make sure that their action can be seen as a proportionate means of achieving a legitimate business aim. That justification should be explained clearly to the employee and evidence presented as necessary.
As with all discussions with employees, the employer needs to keep a record of the request made, any conversations held and the decision, together with any evidence presented.
Duration of breastfeeding
Although employers would probably like to know how long a woman will continue to breastfeed, the situation is often outside her control and in some situations, asking about it could be considered discriminatory harassment. The best advice for employers is to tread carefully when thinking about asking a breastfeeding employee such questions.
Breastfeeding and discrimination
Under the Equality Act 2010, it is illegal to discriminate against someone based on their sex. The Equality Act 2010 (Amendment) Regulations 2023 extend the definition of sex to include breastfeeding. This means:
- it is illegal to discriminate against anyone who is breastfeeding, and
- employees can bring claims at employment tribunals based for discrimination for breastfeeding