In the recent case of  Mellor v The MFG Academies Trust, an Employment Tribunal upheld a complaint of harassment following the employer’s failure to provide breastfeeding facilities.

What happened?

Ms Mellor employed as a teacher by the Trust. During the Covid-19 lockdown, the Trust prevented her partner from bringing their baby onto school premises at lunchtime so that she could breastfeed her child. It had not been an issue before the lockdown restrictions.

Before she returned to work from maternity leave, she twice requested the Trust provide a room for her to express milk and make breastfeeding easier. Neither request was dealt with by the school.

By the time she had started working, she was unable to express milk during the day which left her in discomfort and was forced to express milk in her car or in the school toilets.

Ms Mellor was concerned about being seen by passers-by whilst in her car, and doing so found having to use the toilets “unhygienic and disgusting”.

As she was not allocated any time to express, she had to do it at lunch and eat at the same time whilst in the “dirty” toilets.

Ms Mellor brought three claims in the Employment Tribunal: direct discrimination, indirect discrimination and harassment on grounds of sex.

What did the Tribunal decide?

In respect of the discrimination claims, the Tribunal found that the less favourable treatment of Ms Mellor was due to “administrative incompetence”, rather than because of her sex.

The Tribunal found that Ms Mellor being forced to express milk either in her car or in the school toilets amounted to harassment. She was being subjected to a degrading, hostile and  and humiliating environment. A colleague described being “horrified” by the idea of Ms Mellor having to sit on the toilet floor to express milk.

“a woman who has recently given birth should not be subjected to these circumstances solely because she has done so”.

The Trust argued that due to Covid-19 procedures, many rooms were available for Ms Mellor to use to express milk in and she did not require anyone else to arrange a room for her. However, the Tribunal believed Ms Mellor’s evidence that she was unaware of these rooms as the school had not explicitly informed her of the availability and she should not be expected to simply wander into a free room herself.

What can employers learn from this?

Employers should ensure there are adequate facilities for breastfeeding women in the workplace. It is also worth noting the Tribunal was not willing to allow the school to place responsibility on Ms Mellor. Even though there were rooms available for her to express milk, the school did not communicate this to her and failed to previously respond to her requests for a room to express milk. Had the school responded properly and provided her with the information, then perhaps this case could have been avoided.

The case serves as a reminder of the importance of clear and effective communication and through onboarding, both for new starters and returning employees from a period of absence or leave.

7th September 2022

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