Do you have to provide a separate lockable room for breastfeeding mothers to express milk?

That was one of the issues the tribunal had to determine in Gibbons v Cardiff and Vale University Local Health Board.

Facts

Ms Gibbons worked as a health care support worker at a hospital managed by the respondent. She went on maternity leave and met with her manager to discuss returning to work. She was still breastfeeding and asked for a lockable room where she could express milk in private. Her employers agreed to this, but hadn't had the lock fitted by the time she returned to work. On her first day back her manager told her to put a chair up to stop people getting into the office she was using and to put a sign up saying she wasn't to be disturbed. 

Ms Gibbons was very unhappy about this (and the fact that no risk assessment had taken place) and left early. Her manager completed the risk assessment the following day. It said that there wasn't an appropriate place for Ms Gibbons to express milk. It recommended that she use an office without a lock, put up ‘do not disturb’ sign and said that other staff should be told about her needs.  

Ms Gibbons did as she was asked. However, the office was not private and members of staff walked in when she was expressing. A lock was fitted around four months after Ms Gibbons returned to work. It cost £5.50. 

Ms Gibbons became pregnant and had a further period of maternity leave. She made it clear that she would need a lockable room to express breast milk three times each shift when she returned to work. She was provided with a lockable room, but it was not always available when she needed it. She raised a grievance saying that not having a private space negatively impacted on her ability to express milk which affected her health and that of her child's.

The hospital put in place new arrangements to support Ms Gibbons.

Ms Gibbons brought a number of claims including an allegation that the failure to provide her with a lockable room to express milk and conduct a breastfeeding risk assessment on or before her first day of work amounted to harassment on the grounds of her sex. 

Tribunal decision

The tribunal upheld her harassment complaint in respect of the hospital's failure to provide her with a lockable room to express milk.

Breaking down the requirements for harassment to be made out, it said that this was unwanted conduct that specifically related to Ms Gibbon's sex: ‘breastfeeding is related to maternity and is an activity that biological women carry out. [Ms Gibbons] wanted privacy due to the intimate nature of the activity she was carrying out as a woman.’

The tribunal acknowledged that the hospital's behaviour towards Ms Gibbons hadn't been deliberate, but had the effect of violating her dignity and humiliating her. And, Ms Gibbon's reaction was reasonable because the hospital had agreed to fit a lock so that she could express in privacy. Fitting a lock was  simple, quick task and the hospital should have made sure that it was in place on her first day of work. It said this:

‘Expressing is an intimate, personal activity where what are the appropriate arrangements will vary from individual to individual. Different people will have different expectations and preferences as to what constitutes privacy for them. It is imporant that an expressing mother feels secure and relaxed when expressing because otherwise expressing may not be effective.’

The hospital repeated the same mistake when Ms Gibbons returned to work from her second maternity leave and failed to initially provide her with a safe space to express.

The tribunal, however, found that delaying her risk assessment by a day did not harass her. The work she was doing on her first day back was no risk (it was office based) and it was not reasonable for Ms Gibbons to feel that this violated her dignity or created a hostile, intimidating,degrading or humiliating environment for her.

What legal responsibilities do you owe to breastfeeding mothers returning to work?

1. Provide a suitable environment for a breastfeeding mother to rest 

The Workplace (Health, Safety and Welfare Regulations) 1992 set out a general requirement for employers to provide suitable facilities for all workers to eat and rest. But there is not any legislation that requires facilities to be provided specifically for breastfeeding or expressing milk (although as we have seen in this case, a failure to provide this will expose you to discrimination claims). Nor is there a statutory right for a woman to take time off work for breastfeeding or expressing milk. 

The Health and Safety Executive has produced guidance with states that employers must provide ‘suitable facilities' for breastfeeding mothers to rest - including somewhere where they can lie down. The facilities should be hygienic and private so they can express milk if they choose to – toilets are not a suitable place for this - and include somewhere to store their milk, for example a fridge. 

The H&S guidance doesn't mention providing a lockable door. The tribunal made it clear that in some circumstances having a private office with a comfortable chair and a ‘do not disturb’ sign may be sufficient. But in this case the hospital had agreed that Ms Gibbons needed a lockable room to ensure that she had the privacy she needed.

2. Conduct a risk assessment

The UK’s Management of Health and Safety at Work Regulations 1999 require employers to undertake a specific risk assessment for breastfeeding mothers if the work environment (which includes any processes, working conditions, or any physical, biological or chemical agents they might come into contact with) could involve a risk to them or their babies. 

In addition once a woman has notified you that they are still breastfeeding (which bizarrely they need to put in writing), you have a legal obligation to conduct a specific risk assessment where your general assessment has already flagged risks they, or their babies, could be exposed to harm. The risk assessment must be ‘suitable and sufficient’. This involves two stages: 

i) Reviewing your general risk assessment and, where appropriate, updating it; and 

ii) Addressing any issues that arise from the work they do, or any medical conditions they have.  

You don't necessarily have to meet the employee to complete the assessment but it can be helpful to do so. 

You should undertake the risk assessment without undue delay. What amounts to undue delay will depend on the nature of the work the employee is carrying out. As a rule of thumb, the riskier the work, the quicker you need to do the assessment.

If you don't carry out a risk assessment, that may amount to less favourable treatment relating to sex (direct discrimination) under the Equality Act 2010.

3. Reduce the risk of harm to the employee or their baby

If you can't ameliorate risk to its lowest level, you must offer the employee a suitable alternative job (at the same rate of pay). And, if you don't have any available, you have to suspend the employee on full pay until the risk is removed. Please note: you can't limit how long someone can continue to breastfeed and some mothers may choose to breastfeed in line with NHS guidelines which state: 

'You and your baby can carry on enjoying the benefits of breastfeeding for as long as you like. Breastfeeding into your baby's 2nd year or beyond, alongside other foods, is ideal.' 

We can help

Our partner, Jenny Arrowsmith regularly helps organisations support breastfeeding mothers. Please get in touch if you'd like details of the training she can offer or need specific advice on this issue.

Our newsletters

We publish monthly employment newsletters. If you'd like to be added to the mailing list, please let me know.