EasyJet was wrong to refuse requests for new working arrangements on safety grounds; ruling may lead to challenges in other industries, says lawyer
An airline’s failure to accommodate the needs of two breastfeeding employees, despite warnings from doctors, amounted to sex discrimination, a tribunal has ruled.
Budget airline easyJet cited health and safety concerns as it rejected requests from Sara Ambacher and Cynthia McFarlane that their duties be limited to the ground or that they work a maximum of eight hours a day in order to express milk, the employment tribunal in Bristol heard.
The Bristol-based cabin crew members were aware they were not permitted to express milk during a flight. On the recommendation of their GPs, they asked easyJet to roster them for a maximum of eight hours so they could express milk either side of their shifts.
The airline refused, saying unforeseen delays could result in Ambacher and McFarlane working beyond eight hours. Managers Googled ‘breast feeding risks’ before coming up with a series of unworkable ‘solutions’, the tribunal heard.
The airline disregarded the advice of four GPs, failed to carry out its own risk assessment despite having a dedicated health and safety team, and failed to send the women to be assessed by occupational health professionals.
Following a number of grievances, easyJet agreed that Ambacher and McFarlane could perform ground duties for a maximum of six months because breastfeeding was a personal ‘choice’, the tribunal heard.
The employer’s failure to accommodate the pair’s requests amounted to indirect sex discrimination and breached the Employment Rights Act, the tribunal ruled. It was also discriminatory to essentially limit the time period during which the mothers could continue to breastfeed.
Unite, which represented the employees, said the airline should have reduced the breastfeeding mothers’ hours, found them alternative duties or suspended them on full pay. Nicky Marcus, legal officer at Unite, said: “We are delighted with the ruling; it is a groundbreaking victory which has wider implications for all working women, particularly those in atypical workplaces like cabin crew. The days of ‘I’m going back to work so I will have to give up breastfeeding’ are over.
“Unite has tens of thousands of female cabin crew members across the major airlines and we will be working with those airlines to ensure they adopt policies and practices that reflect this ruling.”
A spokeswoman for the airline said: “EasyJet wants to ensure that women can continue to breastfeed whilst working at easyJet, and we are reviewing the working practices for our cabin crew to ensure they can do so.”
Julia Wilson, partner, employment and data protection at Baker & McKenzie, emphasised that although the outcome of this case does not represent a change in the law, or an absolute obligation on an employer to make all adjustments requested, it has brought the issue to the national consciousness. “Employers can expect to receive more requests for support from breastfeeding employees,” she said.
It could have an effect on other industries, she added: “This judgment will be relevant to employers in all industries because the risk of indirect discrimination arises when any of the working arrangements make it difficult or impossible for the employee to breastfeed and/or express. However, the risks will be heightened in industries where the nature of work, the work environment or the duration of shifts make it difficult or unsafe to express milk during the shift times – as will often be the cases in jobs and industries that involve a lot of travel.”
Earlier this month, Flybe cabin crew Emma Seville won a sex discrimination case against her employers after they refused to change her working hours to accommodate her childcare arrangements. Seville argued that her existing arrangements placed female cabin crew members at a disadvantage compared to their male colleagues.
Legal experts regarded the hearing as a “significant” test case that could lead to flexible working schemes being adopted at other airlines.