The Equality Act 2010 provides that treating a woman less favourably because she is breastfeeding outside of work can amount to direct discrimination. This is where someone is treated less favourably because of a protected characteristic. Unfortunately the legislation contains an exception which provides this does not apply to breastfeeding at work.
Whether this exception, which prevents a claim for direct discrimination, is lawful has been called into question by a recent case in European Court of Justice (ECJ) called Ramos v Servicio Galego de Saude (C-531/15) EU:C:2017:789. This is a Spanish case but it is relevant to the UK as it involves how national laws interpret and apply the same EU laws. In this case when an employer carried out a workplace risk assessment for a breastfeeding worker which failed to consider the specific circumstances of the individual woman’s working conditions this was held to be direct discrimination. As the ECJ’s decision involves the same EU laws, this brings into question whether the exception against claims for direct discrimination at work in the Equality Act 2010 could be challenged.
Although there is work for the UK courts to do in relation to claims for direct discrimination, what is clear is that breastfeeding workers can claim indirect discrimination. This is where a workplace policy or rule (known as a “provision, criterion or practice”) applies to everyone but adversely affects people with a protected characteristic more than others and is not justified. For example, if an employer does not allow a woman the necessary flexibility to breastfeed or express milk this can be indirect discrimination unless the employer can objectively justify that decision. Another example would be refusing a request to return to work part-time to allow a woman to feed a child suffering from eczema where a GP is advising that breastmilk will help that medical condition. Unless an employer can objectively justify the decision such a refusal is likely to be indirect discrimination.