Breastfeeding
A new or expectant mother is a woman who is pregnant, has given birth within the last six months or is breastfeeding. Although there is no statutory right to paid time off for breastfeeding, as a new Mum under this definition, you have special rights under the following legislation;
- Workplace (Health, Safety and Welfare) Regulations 1992
- Management of Health and Safety at Work Regulations 1999 (Pregnant Workers Directive (92/85/EEC))
- Employment Rights Act 1996 (ERA 1996)
- Flexible Working Regulations 2014
- Equality Act 2010
Are There Any Legal Restrictions?
There are no legal restrictions on breastfeeding at work, neither is there a time limit on how long you can breastfeed. The Health and Safety Executive (HSE) says that there may be risks other than those associated with pregnancy to consider if you plan to continue breastfeeding once you have returned to work. These depend on your working conditions and could include:
- working with organic mercury;
- working with radioactive material;
- exposure to lead
This list is not exhaustive, and there is further Guidance from the European Commission on other risks that could cause harm to whilst you are breastfeeding.
Under Regulation 18 of the Management of Health and Safety at Work Regulations 1999, you must notify your employer in writing that you are pregnant, have given birth within the last six months or are breastfeeding. It is only on YOUR notification that your Employer will be expected to take action.
Your Employer must take the same actions to protect you from any risks as when you told them you were pregnant. (See Telling your Employer that you are pregnant). In order for these rights to kick in, you must let your Employer know that you are breast feeding. It is best to do this before you return to work in order to give your Employer sufficient time to prepare, so notify your employer during one of your SPLIT/KIT days during maternity leave.
Suitable Facilities – the Workplace (Health, Safety and Welfare) Regulations 1992
Regulation 25(4) of the Workplace (Health, Safety and Welfare) Regulations 1992 places a duty on your Employer to provide pregnant women and nursing mothers with “suitable facilities” to rest. The Approved Code of Practice and Guidance from HSE explains what these suitable facilities should be on pages 43 and 44. Agency workers are entitled to the same rights to access facilities as are available to other employees in that workplace. So if permanent staff have the use of a mother and baby room, you are entitled to use it too.
ACAS has very good guidance on facilities in the advice booklet – Accommodating breastfeeding employees in the workplace.
Risk Assessment – Management of Health and Safety at Work Regulations 1999
The Pregnant Workers Directive (92/85/EEC) has been added to the Management of Health and Safety at Work Regulations 1999 (MHSW) which contain specific provisions for women of childbearing age in the workplace.
Regulation 3 places a legal duty on your Employer to assess the health and safety risks that you and your colleagues are exposed to whilst at work. Once the risk assessment is done, your Employer must put health and safety measures in place to manage the identified risks. When the risk assessment has identified a risk, your Employer should tell all female employees of child bearing age about the potential risks if they are, or could be in the future, pregnant or breast feeding.
Risk assessments must pay particular attention to:
- women who are pregnant
- women who have recently given birth or have miscarried
- women who are breastfeeding
- women who may be exposed to any process, working condition or physical, chemical or biological agent which may damage their health and safety or that of their unborn or newborn baby.
When your employer receives your written notice that you are pregnant, that you have given birth within the previous six months, or are breastfeeding, they must carry out a specific risk assessment. This risk assessment must take into account any advice provided by your doctor or midwife about your health.
Regulation 16 says that the risk assessment must take account of how hazards may affect the health and safety of new or expectant mothers and must be reviewed regularly.
Your Employer must take action to remove, reduce or control any identified risks. If the risk cannot be removed, your Employer must;
- temporarily adjust your working conditions and/or hours of work. If that is not possible,
- offer you suitable alternative work (at the same rate of pay) if available. Section 67 of the Employment Rights Act 1996 says that when offering you alternative work, your Employer must make sure that the work is suitable and appropriate for you to do in the circumstances. The terms and conditions of the alternative work must not be less favourable than your normal terms and conditions.
- suspend you from work on paid leave if suitable alternative work cannot be found, for as long as necessary to protect your health and safety and that of your child.
Night Work and Maternity Suspension
Night work is addressed by Regulation 17 which says that a new or expectant Mum can be suspended from night work on full pay where there is a signed certificate from a GP or midwife stating that this is necessary in the interests of their health and safety. In such a situation, your Employer should offer you suitable alternative day time work subject to Section 67 of ERA 1996. It is only when such suitable alternative work is not available, that your Employer can suspend you.
If your Employer does not carry out the appropriate health and safety requirements, you can leave work and bring an Employment Tribunal Claim for constructive dismissal. Section 100 ERA 1996 makes it an automatically unfair dismissal if you left work or refused to return to work because of a dangerous situation, and where you have taken steps to protect yourself or others in a dangerous situation.
Maternity Suspension and Unfair Dismissal
Section 67 ERA 1996 says that the suitable alternative work on offer must be suitable and appropriate for you to do in the circumstances, and the terms and conditions must be no less favourable than your normal terms and conditions.
You can bring a claim for detriment in the Employment Tribunal if there is suitable alternative work available which your Employer did not offer you before suspending you from work on the grounds of maternity.
If you are suspended on maternity grounds you are entitled to your full wages or salary for the duration of the suspension. The only exception is where you have unreasonably refused an offer of suitable alternative work. Here, you will only receive full pay for the duration of the offer of alternative work. If you cannot do the alternative work on offer, get your G.P or Health Visitor to write to your Employer stating why the offer is not suitable.
You will continue to be an Employee during the maternity suspension, so that period will count towards your continuous employment for accruing any workplace benefits.
If your Employer does not pay you your full wages due for any day of your maternity suspension, you can bring a claim for unauthorised deduction of wages in the Employment Tribunal.
Section 80F (1) ERA 1996, allows you to ask your Employer for a variation to the terms and conditions of your employment. The request is made under the Flexible Working Regulations 2014.
If your employer dismisses you for a reason related to your pregnancy, childbirth, maternity, or because you are breastfeeding it is an automatically unfair dismissal – section 99 ERA 1996 and Reg. 20 & 10 Maternity and Parental Leave etc. Regulations 1999.
A dismissal for family-related reasons will be automatically unfair. This includes;
- Maternity
- Pregnancy
- Childbirth
- Taking parental leave or time off for dependents
- Taking Shared Parental Leave
- Attending an adoption appointment
– s99 Employment Rights Act 1996, Regulation 20 Maternity and Parental Leave etc. Regulations 1999, Regulations 28 & 29 Paternity and Adoption Leave Regulations 2002, and Regulation 34 Additional Paternity Leave Regulations 2010
Apply for a Change to Your Contract
Under Section 80F ERA 1996, you and all your colleagues (both male and female) have a statutory right to ask your Employer for a change to your contractual terms and conditions of employment to allow you to work flexibly. If you need to change your working hours in order to continue breastfeeding, you can make an application to your Employer to allow you to work flexibly.
If your application is successful, the changes to your working pattern will be permanent unless you and your Employer agree that the changes should be temporary. Your Employer must seriously consider your request and is only allowed to refuse for reasons laid out in section 80G (1) ERA 1996.
The Flexible Working Regulations 2014 set out the rules regarding how to make an application for flexible working. To be entitled to apply for flexible working, you must;
- be an employee – section 80 F (1)ERA 1996
- have at least twenty- six weeks of continuous service with your Employer – section 80F(8)(a)(i) ERA 1996 and Regulation 3 Flexible Working Regulations 2014
- not have made an application for flexible working during the previous twelve months – section 80F (4) ERA 1996
- The Flexible Working Application form is available Here (See also – Flexible working; how to make a request)
ACAS and Flexible Working Applications
The ACAS Code of Practice 5: Handling requests to work flexibly is a statutory code which tells your Employer what to do when considering your written request to change your working hours or place of work under Section 80F ERA 1996. Read the ACAS Code of Practice 5 and The right to apply for flexible working before submitting your application. All Codes of Practice issued by ACAS have statutory force under section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). The Code itself is not legally binding and so it does not give a free standing right to bring a claim against an employer who breaches it, however under section 207 TULRCA 1992, it is admissible evidence before an Employment Tribunal. Section 207A provides that compensation can be adjusted by up to 25% if you or your employer breach any of the provisions of the Code.
If your Employer refuses your request you can appeal your employer’s decision. If there is still a refusal which does not fall within the grounds set out in section 80G (1) ERA 1996, or that you believe to be unreasonable you can make a claim to the Employment Tribunal. The Employment Tribunal must take the relevant provisions of the Code of Practice 5 into account.
The Grounds on Which You Can Bring an Employment Tribunal Claim
A dismissal for claiming your right to flexible working provisions is automatically unfair – section 104C ERA 1996.
You can only bring a flexible working claim in the Employment Tribunal for the following reasons;
- where your Employer rejected your application for reasons that are not permitted by law – sections 80G(1)(b) and 80H(1)(a) ERA 1996
- where your Employer does not deal with your application in a reasonable manner – sections 80G(1)(a), and 80H(1)(a)- ERA 1996
- where your Employer did not let you know of the decision about your application within the “decision period”. – sections 80G(1)(aa) and 80H(1)(a) ERA 1996
- where your Employer bases the decision to reject your application on incorrect facts – section 80H(1)(b) ERA 1996
Equality Act 2010
Section 4 of the Equality Act 2010 (EQA 2010) lists pregnancy and maternity as protected characteristics. Section 18 EQA 2010 makes it unlawful to discriminate against, or treat you unfavourably because of your pregnancy or an illness connected to the pregnancy, because you have given birth recently, are breastfeeding or on maternity leave.
You have this protection during the “protected period”. The protected period begins when your pregnancy starts and ends at the end of your additional maternity leave period or (if earlier) when you return to work after the pregnancy. If you don’t have a right to ordinary and additional maternity leave, the protected period ends at the end of the 2 weeks beginning with the end of your pregnancy.
If your Employer does not protect your health and safety during pregnancy it is a breach of the Management of Health and Safety at Work Regulations 1999 and is automatically sex discrimination.
Sex Discrimination
If you are dismissed or treated less well because you are breastfeeding, you may have a claim for direct sex discrimination under section 13 EQA 2010. You are protected against sexual harassment under section 26 which includes detrimental treatment or offensive teasing because you are breastfeeding, as well as victimisation under section 27.
Indirect discrimination is described under section 19. Indirect sex discrimination occurs when an apparently gender-neutral requirement, disadvantages more women than men and cannot be justified on business grounds. An example would be where an Employer wants all positions to full time or for all staff to work a particular Rota. If a breastfeeding employee asked for a temporary alteration in her hours in order to continue breastfeeding and this was refused, she would be placed at a disadvantage because she would not be able to breastfeed. This would be indirect discrimination if the Employer has not got good business reasons for refusing.
Some Useful Organisations
Association of Breastfeeding Mothers
Last Updated: [11/09/2021]
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