School Harassed Teacher Making Her Express Milk In Filthy Toilets

The Employment Tribunal handed down a judgment in the case of a school-teacher who had been harassed based on the protected characteristics of her sex and pregnancy.

What Happened In The Case?

The teacher had started her maternity leave in around 2018 and then made the decision to return to the workplace in January 2019. The Claimant and her partner had agreed to some arrangements with the school. Under the terms of the arrangement the school and the Claimant had come to an agreement for the Claimant to be allowed to naturally feed her child and for the Claimant’s partner to be given special permission to bring the little one into the school for the purposes of breastfeeding. The Respondent had also granted the Claimant’s request to make use of a designated room for breastfeeding during a particular time slot. Once she was granted permission to use the room and on the Claimant’s return to work, she continued to utilize the facility to express milk.

During events, it transpired that the Responded had decided to change the agreed arrangement. The Respondent had approached the Claimant and then had seemingly made her an unusual offer. She had been offered the choice to either express milk in the toilet facilities or do so in the comfort of her car during her working hours.

The Claimant heard the offer put forward by the Respondent and perceived the act of expressing milk in a toilet as disgusting and unhygienic. The feelings of the Claimant were exacerbated by her feelings that the conditions of the toilets were usually filthy. The Claimant also felt she was left with no alternative but to use the toilets or the car.

How Did The Judge Decide The Case?

The Employment Judge in the case reviewed the evidence the case on the basis that she had no other alternative available to him but to use her car or a toilet. The decision to retract the agreed facilities and to restrict the options open to the Claimant equated to conditions that were humiliating or degrading.

How Should In-House And External Lawyers Be Advising Their Business Clients?

Two of the leading employment lawyers in the country Paul Kelly from Blacks Solicitors and Paul Holrift from Croner commented on the importance of this case. They said that there is no hard and fast requirement for those businesses employing staff to permit them to naturally feed their children in the workplace. Employers finding themselves in this predicament should bear in mind that the Employment Tribunal will not spontaneously equate the provision of such services to the perception of satisfactory quality for breastfeeding purposes. By way of strategy, employers should:

• identify if there are any expectant or new mothers working in the organization
• communicate directly with affected members of the workforce as to what their needs are
• take account of the requirements of affected persons and
• provide acceptable places where the workforce can feed their offspring in private.

If employers choose to sit on their hands and do nothing to address these issues or fail to justify their omission to provide such a breastfeeding facility, there is a risk of harassment as what happened in this Employment Tribunal case.

ASSESSING FIRMS

#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Ms T Mellor v The MFG Academies Trust – Case Number 1802133/2021 – Employment Tribunals – Microsoft Word - 1802133.2021 -Reserved decision Mellor v MFG final.docx (publishing.service.gov.uk)

[2] Section 13 Equality Act 2010

[3] Otero Ramos C-351.15 [2018] ICR 965

[4] Section 39 Equality Act 2010

[5] Section 40 Equality Act 2010

[6] Section 212 Equality Act 2010

[7] Unite the Union v Nailard UKEAT/0300/15/BA

[8] Section 17 Equality Act 2010

[9] Section 18 Equality Act 2010

[10] Section 23 Equality Act 2010

[11] Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] IRLR 645

[12] Section 29 Equality Act 2010

[13] Section 35 Equality Act 2010

[14] Section 38 Equality Act 2010

[15] Section 85 Equality Act 2010

[16] Section 91 Equality Act 2010

[17] Section 101 Equality Act 2010

[18] Otero Ramos V Servicio Galego de Saude and Another (Case C-531/15)

[19] European Union (Withdrawal) Act 2018

[20] Danosa v LKB Liztings SIA (Case C-232/09) [2010] ECR I-11405

[21] Gonzalez Castro v Mutua Umivale (C-41/17)

[22] O’Brien v MOJ CJEU 2012 ICR 955

[23] Igen Ltd v Wong [2005] IRLR 258

[24] Section 19 Equality Act 2010

[25] Rutherfordv v Secretary of State for Trade and Industry (No.2) [2006] UKHL 19

[26] Dziedziak v Future Electronics Ltd EAT 0271/11

[27] Section 26 Equality Act 2010

[28] Thomas Sanderson Blinds Ltd v English EAT 0316/10

[29] Pemberton v Inwood [2018] EWCA Civ 564

[30] Richmond Pharmacology v Dhaliwal [2009] ICR 724

[31] Section 123 Equality Act 2010

[32] Section 120 Equality Act 2010

[33] Owusu v London Fire & Civil Defence Authority [1995] IRLR 574

[34] Section 136 Equality Act 2010