Does Failure to Allow Certain Flexible Working Arrangements for Breastfeeding Mothers Amount to Sex Discrimination…?

 … yes according to a recent Employment Tribunal decision in the case of McFarlane and another v easyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15.

The Employment Tribunal has held that easyjet’s refusal to allow certain flexible working arrangements for breastfeeding mothers amounted to indirect sex discrimination.

What is indirect discrimination in employment?

Indirect discrimination as defined in the Equality Act 2010, is when an employer implements a provision, criterion or practice (PCP) which applies to everyone in the same way, but it has a detrimental effect on certain people compared with others. For example, in this case, the issue was whether women were placed at a particular disadvantage when compared to men.

An employer will avoid liability for indirect discrimination if it can demonstrate that the PCP is objectively justified: i.e. it is a proportionate means of achieving a legitimate aim.

Why did easyJet indirectly discriminate?

This claim was bought by two crew members of easyJet who at the end of their maternity leave were still breastfeeding their children. They made flexible working requests that they were not rostered to work longer than 8 hours; in order to manage the length of time in which to breastfeed.

The Claimants supplied fitness to work certificates which indicated the risk of mastitis if they were not able to express milk, and in order to manage this risk they should not work longer than 8 hour shifts.

easyJet rejected this request for the following reason (the “PCP”):

"Crew members fly to the flying patterns they are rostered; there is no restriction on the length of the day that a crew or staff member can complete; crew members may be required to work more than 8 hours continuously."

easyJet argued that the PCP achieved certain legitimate aims; including ensuring that it could deliver its flying schedule, as well as avoiding flight delays and cancellations. As such, rejecting bespoke rostering arrangements was a proportionate means of achieving those aims.

As a result, the Claimants were given temporary ground duties and claimed indirect sex discrimination.

The outcome

The Tribunal held that the PCP did place women, including the Claimants at a particular disadvantage when compared to men. The disadvantages included, ceasing breastfeeding or exposing themselves to the increased likelihood of mastitis, or to continue breastfeeding but suffer financial disadvantages due to not undertaking certain shifts.

Additionally, the non-granting of bespoke rosters could not be understood as a proportionate means of achieving a legitimate aim, as there was no evidence to suggest that bespoke rosters would cause easyJet any difficulty.

The Tribunal awarded the Claimant’s compensation which included compensation for financial losses and injury to feelings.

The effect on your business

This case reinforces the need to consider and review your business’ policies and procedures. It also highlights the need to consider individual circumstances and assess situations on their own merits.  If you are unsure whether your business’ policies and procedures could be indirectly discriminatory or how to deal with a similar type of request, you should not hesitate to contact our Employment Team.

Alternatively, if you would like further information on indirect discrimination and UK employment law, please get in touch with a member of our Employment Team.