Law firm Slater and Gordon recently published a report on the rights of breastfeeding mothers returning to work, highlighting the fact that many employers are unaware of the law. Slater and Gordon have written the following guest blog for us, explaining the top five things you need to know about returning to work whilst continuing to breastfeed.
1. Plan your discussion with your employer in advance of your return
Take time to consider the support and facilities you need to help you breastfeed or express at work before you go back to work and plan to have a conversation with your manager or HR, ideally well in advance of your return date. You may wish to use one of your KIT days to arrange a meeting.
The support you need will very much depend on your own personal circumstances. Some mothers would like to visit their baby during the working day and others plan to express breastmilk.
Check whether your employer has a breastfeeding policy, or a return to work policy outlining the type of support they provide or what you need to do to request support. Most good employers will.
2. Know your rights
The law does not currently allow a simple, straightforward right to breastfeeding breaks though employers are required to provide a place for breastfeeding mothers to rest.
In terms of breastfeeding support, the Health and Safety Executive and guidance from the European Commission recommend that employers should provide:
- access to a private room where women can breastfeed or express breast milk;
- use of secure, clean refrigerators for storing expressed breast milk while at work, and
- facilities for washing, sterilising and storing receptacles.
The ladies toilet for example is never a suitable place in which to breastfeed a baby or collect milk.
ACAS guidance also gives the following advice to employers when asked to consider additional breaks for breastfeeding:
“Employers should consider providing short breaks for breastfeeding or expressing milk, weighing it up against the likely impact it might have on the business. Employers should be careful not to discriminate against breastfeeding employees. If employers are unable to grant additional breaks, they could consider slightly extending normal breaks for the employee such as a mid-morning coffee break or leaving earlier in the day to minimise any disruption to the business.”
3. Consider a request for flexible working, such as for reduced hours
If you have worked for your employer continuously for 26 weeks, you have the right to make a request for flexible working. You are likely to qualify to ask as maternity leave counts as continuous service.
You might want to reduce your hours, change which hours you work (to start later or finish earlier) or work the same number of hours but over fewer days. You may also want to work from home or as a job share, or return part-time. Your employer must agree to flexible working where it can accommodate the request, but can turn it down on business grounds defined in flexible working regulations (there are 8 grounds including inability to meet client demand and detrimental impact on performance). However, it must make sure it does not discriminate and cannot simply refuse a request without fair process or reasons.
Employers are obliged to deal with requests in a reasonable manner. If your employer refuses your request you should have a right to appeal your employer’s decision so that you have an opportunity to clear up any misunderstandings or explore other options. If you do not appeal there is a risk that this implies you accept the decisions made.
If it is still refused you should seek legal advice, as you may have claims for discrimination, including indirect discrimination if your employer for example has a policy or practice which disadvantages women and which cannot be justified by the employer.
For example, an employer might require all posts to be full time. If a breastfeeding employee asked for a temporary alteration in her hours in order to continue breastfeeding and she would be disadvantaged if this was refused (because she would be unable to breastfeed), her employer should grant her request unless there are good business reasons for refusing.
4. Consider whether there is a health and safety risk to you and your baby, and know your rights
Is there a risk to your health or safety or that of your baby from your working conditions or hours?
All employers have a duty to protect the health and safety of their employees. While you are breastfeeding, you and your baby have special health and safety protection under the same regulations that give protection to pregnant employees.
Employers of women of childbearing age employers must also carry out a ‘specific’ risk assessment of risks to new and expectant mothers arising from ‘any processes, working conditions, physical, biological and chemical agents’.
Some hazardous substances can enter breastmilk and might pose a risk to your baby. If your work brings you into contact with a dangerous substance, your employer should take appropriate steps to make the job safe, remove that risk or if that is not possible they may have to explore temporarily changing your working conditions or hours, such as working shorter shifts, giving regular shifts or avoiding night work or overnight stays.
Reasonable action to protect your health and safety while you are breastfeeding could include adequate rest breaks to ensure proper nutrition, access to water and washing facilities. Your employer should ensure that the environment is not too hot or too cold. Employers should also consider levels of fatigue, stress and changes in posture.
If adjustments to your working hours or conditions would not remove identified risks, then you should be given a temporary transfer to alternative work, or suspended, without loss of pay.
5. If your employer is not supportive and you have concerns about harm to you or your baby or in relation to possible discrimination of harassment, know your options
If support is not forthcoming, then it may be concerns need to be raised. It’s usually best to raise concerns informally initially with your manager or HR, and if that isn’t successful, it may be necessary to raise concerns more formally in writing through a grievance process. If the concerns relate to working hours, you may wish to firstly consider making a formal flexible working request. If support is still not forthcoming, you have to consider a more formal route again, such as exploring potential legal claims. You should seek support from your trade union or seek legal advice in these circumstances.
Do keep a record of the requests being made, the experiences you’ve had and the responses received.
It is worth noting that if you consider your situation is serious enough to merit taking legal action, there are strict time limits and you only have three months less one day from the date the last act of discrimination took place to lodge a start the compulsory ACAS Early Conciliation process with a view to bringing an Employment Tribunal claim.
It is important to take advice quickly and you should seek support from your trade union or take specialist advice if you find yourself in this situation.
You can find information on returning to work, discrimination and flexible working on the Slater and Gordon website, and on the ACAS and gov.uk websites.