Failure to provide workplace facilities to express milk was sexual harassment

As it’s World Breastfeeding Week from 1st August to 7th August it’s an ideal time to share the outcome of the recent case of Mellor v MFG Academies Trust. In this case, the Employment Tribunal (ET) considered an employees’ claims against her employer for direct sex discrimination, indirect sex discrimination and sex harassment.

The Facts
Ms Mellor was a teacher at The MFG Academies Trust (the school). Following Ms Mellor returning to work from maternity leave in January 2019, the school permitted her partner to bring her baby into the school for her to breastfeed. At this time, Ms Mellor, requested and was provided with a room in which to feed her child. However, issues later arose when she required a room to express breastmilk, as suitable facilities were not provided.
In March 2020, while pregnant with another child, Ms Mellor, advised the school in writing that she would require a private room to express breastmilk on her return from maternity leave. The school was later reminded of this requirement when she wrote to confirm her return to work date, advising that she would need a room to express from September onwards. When she returned from maternity leave, Ms Mellor, again requested the use of a suitable room to express in discussions with both her manager and HR, however, no suitable room was provided and she was left to express in either the school toilets or her car.
As she only had a 25-minute lunch break and expressing took 20 minutes, she was forced to eat her lunch at the same time. She mainly used the toilets to express as it was too cold in her car and she was concerned about being seen. She would generally sit on the toilet floor to express and eat her lunch at the same time.
Ms Mellor brought claims of direct sex discrimination, indirect sex discrimination and sex harassment against the school.

The Decision
The ET dismissed the claims for direct sex discrimination and indirect sex discrimination but upheld the sex harassment claim.
Direct sex discrimination
Ms Mellor relied on the hypothetical comparator of a male member of staff requiring a private space for medication purposes, for example, a man with diabetes who needed a similar private space to inject insulin and to store the insulin at work. However, this claim failed because Ms Mellor could not show that the treatment she received was because of her sex. The school’s failure to provide suitable facilities to express milk was due to their administrative incompetence and not because she was a woman. This was despite the school conceding that facilities would have been made available to a male comparator (i.e. a diabetic man as noted above).
Indirect sex discrimination
The ET held that the school had a practice of not providing suitable facilities for women to express milk. On a number of occasions Ms Mellor made the school aware that she needed suitable facilities to express milk and no facilities were provided – the ET concluded that this amounted to a Provision, Criterion or Practice (PCP) under the Equality Act 2010. This claim was dismissed by the ET as it found
that, Ms Mellor, had failed to establish that there was a comparative disadvantage between women and men in relation to the PCP identified. The ET reasoned that the PCP must be capable of being meaningfully applied to both men and women. Denying a biological male the facilities to express breastmilk is effectively meaningless and so no comparative disadvantage can arise from this scenario.
Harassment related to sex
Notwithstanding the above, the ET was, however, satisfied that Ms Mellor had been subject to Harassment related to her sex.
Applying the statutory test, the ET concluded that the school did subject Ms Mellor to unwanted conduct by leaving her with no other choice but to express milk in either the school toilet or her car. Ms Mellor found it unhygienic and disgusting and the school’s HR described expressing milk in the toilet as ‘mortifying’. This had the effect of creating a degrading and humiliating environment for Ms Mellor which the ET concluded that, as the need for privacy arose from the intimate nature of breastfeeding, was inherently related to Ms Mellor’s sex.

Comments for Employers
Whilst there is no statutory requirement for Employer’s to provide facilities for breastfeeding or expressing milk at work, HSE guidance recommends that employers should provide facilities such as a private, clean environment (other than toilets) for expressing milk and a fridge for storing it.
Not only is it clearly the right thing for Employers to do, given the outcome of this case, Employers would be wise to ensure that requests for private facilities to breastfeed or express milk are given careful consideration and accommodated, where possible.
If you have any questions or require advice in relation to the content of this article or any other aspects of Employment Law, please do not hesitate to contact a member of the Employment team on 01270 613939.