An employment tribunal has held in Mellor v MFG Academies Trust that it was sex harassment for an employer to fail to provide a private space for an employee to express breastmilk at work, forcing her to express in the toilets or in her car.
The claimant was a teacher. When she returned from maternity leave the school permitted her partner to bring her baby into the school for her to breastfeed. She was provided with a room in which to feed her child. In March 2020 the claimant was pregnant again and advised the school in writing that she would require a private room to express breastmilk on her return from her forthcoming maternity leave. When she returned from maternity leave she again requested the use of a suitable room to express, but no suitable room was provided so she expressed in the toilets (while eating her lunch) or in her car (mainly the former as it was too cold in her car and she was concerned about being seen). She brought claims of direct and indirect sex discrimination and sex harassment against the school.
The claimant's claims of direct and indirect sex discrimination failed. Her hypothetical comparator in her direct discrimination claim was a man requiring a private space for medication purposes (e.g. to inject insulin). Although the tribunal found that the claimant had experienced less favourable treatment (in being forced to express milk in the carpark and the toilet due to the school's failure to provide suitable facilities for expressing), it held that the evidence showed that the reason for the treatment was the school's administrative incompetence, not the claimant's sex. In relation to her indirect sex discrimination claim, the tribunal found that she had failed to establish a comparative disadvantage between men and women (the provision, criterion or practice (PCP) she relied on was the school's failure to provide suitable facilities to express milk despite the awareness of her need which the tribunal found was a sex specific practice and so couldn't be meaningfully applied to both women and men for a comparative disadvantage to arise).
The harassment claim succeeded as the tribunal held that the school's conduct of forcing the claimant to express milk in the toilets while eating lunch, and in the car with the risk of being seen by pupils and others, was unwanted and had the effect of creating a degrading or humiliating environment. The conduct was related to sex as the need for privacy arose from the intimate nature of the activity and because the claimant is a woman.
Take note: The tribunal considered the Equality Act 2010 definition of direct discrimination which includes less favourable treatment of a breastfeeding woman because she is breastfeeding. It concluded that protection only extends to a woman who is actually in the physical act of breastfeeding. This contrasts with the ECJ's decision in Otero Ramos v Servicio Galego de Saude where it was held that any less favourable treatment of a female worker due to her being a breastfeeding woman fell within the scope of the Equal Treatment Directive.
Following this decision it seems that the only legal resort in these circumstances is a sex harassment claim, although a lack of facilities to express breastmilk in the workplace won't always give rise to a degrading or humiliating environment as it did in Mellor.
