Two EasyJet employees have received damages, with the support of Unite the Union and Thompsons Solicitors, in a landmark ruling for the rights of breastfeeding workers.

Gerard Airey, a trade union employment lawyer at Thompsons’ London office, discusses the impact of this case on the airline industry and on workers’ rights as a whole in an interview with legal reporters LexisNexis.

What are the background facts of this employment tribunal case?

There were two claimants in this case, Cynthia McFarlane and Sara Ambacher. They were employed by EasyJet in various roles within cabin crew. Ms McFarlane began a period of maternity leave on 1 June 2014. She was scheduled to return from maternity leave in April 2015. Prior to returning from maternity leave she requested that her rostered hours be restricted to eight hours per day on the recommendation of her GP so that she could continue to breastfeed.

This request was refused and as a result Ms McFarlane raised a grievance with the support of her trade union, Unite the Union. She continued to work as part of cabin crew upon her return from maternity leave, but she did not work shifts above eight hours and during those shifts she was recorded as being on unpaid leave.

Ms Ambacher began a period of maternity leave on 26 July 2014. She was scheduled to return on 26 July 2015. Before her return from maternity leave she informed EasyJet of her intention to continue to breastfeed. She asked that she also have a roster restricted to eight hours to enable her to continue to breastfeed. This was on the advice of a separate GP.

This request was also refused and as a result Ms Ambacher raised a grievance with the support of Unite.

After submitting these claims to Acas, EasyJet offered the claimants ground duties for a period of six months. This started in October 2015 and ended on 15 April 2016. Ms McFarlane returned to full flying duties at this point having ceased breastfeeding. Ms Ambacher was still breastfeeding, and as a result she asked EasyJet to extend the ground duties role until the tribunal hearing in September 2016. This request was refused. Due to the stress of the situation Ms Ambacher was signed off sick, and she took some annual leave to ensure that she was sustained financially up to the hearing.

It is important to note that it was common ground between the parties that it is not suitable for cabin crew to express on board an aircraft while working. The eight hour restriction was the maximum amount of time between expressing that both claimants felt that they could manage without encountering the difficulties which arise with not expressing, namely mastitis, milk stasis and engorgement.

EasyJet’s refused to alter the working hours as they do not have bespoke rosters for staff, but the main reason was health and safety. They stated that they couldn’t guarantee that the claimants would only work eight hours as there may be operational circumstances which caused a delay which meant that the claimants may have to work longer than requested. They stated that they were concerned that this could cause the claimants health and safety issues. The claimants, supported by Unite Legal Services, proceeded with claims of indirect sex discrimination.

What did the employment tribunal decide?

The employment tribunal found in favour of the claimants. They accepted the provisions, criteria or practices (PCPs) applied by EasyJet were that crew members were to fly to the patterns rostered, there was no restriction on the length of a day that a crew or staff member could complete and that crew may be required to work more than eight hours continuously.

The tribunal accepted that if breastfeeding mothers are not given the chance to express breast milk this could lead to increased instance of mastitis, milk stasis and engorgement. Although neither suffered mastitis the tribunal found that it remained a risk whilst they continued to breastfeed.

When considering if EasyJet could demonstrate that the PCPs were a proportionate means of achieving a legitimate aim the tribunal held that there was nothing preventing implementing a bespoke roster. The burden of implementing the bespoke roster would be spread between 350 cabin crew in Bristol. They also held that the respondent’s reasoning for refusing to accommodate the eight hours rostering request on health and safety grounds was contradictory as this actually meant considering rostering the claimants to work longer hours. The business needs of EasyJet were then held not to outweigh the impact of the PCPs on the protected group and on the claimants in particular.

The tribunal found that there was not an individual risk assessment carried out for each claimant when there was a material risk to health and safety. They held that as the claimants were unfit for work over eight hours and they were provided with no work they are deemed to be suspended under the Employment Rights Act 1996. The claimants should have been offered ground duties and these could have been offered at a much earlier stage and if these weren’t available they were entitled to be suspended on full pay.

The tribunal awarded Ms McFarlane £11,620.82 made up of:

  • £8,750 injury to feelings
  • interest
  • loss of earnings, and
  • four days’ pay for attending the tribunal

 

Ms Ambacher was awarded £20,904.15 made up of:

  • £12,500 injury to feelings
  • interest
  • loss of earnings, and
  • four days’ pay for attending the tribunal

 

Both were awarded their £1,200 tribunal fees to be repaid and a number of recommendations were made by the tribunal.

Are the issues raised in this case likely to impact upon certain industries or workplaces more than others?

The issues in this case will certainly impact upon the airline industry, and any industry where expressing is not possible. If employers are not willing to allow breastfeeding mothers to express at work then they will need to make adjustments to assist them to breastfeed, for instance by accommodating additional breaks to enable mothers to express their milk.

The outcome in application means that reasonable adjustments will need to be made for breastfeeding mothers. This is a huge success and of particular significance for Unite the Union, since they have a large number of members in the civil aviation sector that might be positively affected by the ruling.