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Forcing an employee to express milk in car and toilet held to be harassment

Ms T Mellor v The MFG Academies Trust

An Employment Tribunal has recently held that a school committed an act of harassment on the grounds of sex when they did not provide a space for a female teacher to express breast milk at work. Read the ruling here.

Facts

Mrs Mellor was a teacher at MFG Academies Trust (the Trust) and had been on a period of maternity leave, returning in January 2019. When Mrs Mellor returned she was permitted time to breastfeed her child and was provided with a private room for this. Mrs Mellor also was sometimes provided with specified rooms at the Trust to express milk.

In September 2019, Mrs Mellor informed the Trust that she was pregnant a second time. Mrs Mellor told the Trust she would be returning from maternity leave in September 2020. In June 2020, she wrote to the Trust to arrange a Keeping in Touch day and to state that when she returned she would still be breastfeeding so requested support for this. She also outlined from September 2020 she “may need a room to express in” during her lunch breaks. When she returned, she reminded her line manager on several occasions of this request as well as spoke to HR but no room was provided.

Mrs Mellor had to either express in the school toilets during her lunch break or in her car. Her lunch break was 25 minutes and expressing took her 20 minutes so she would sit on the bathroom floor and eat her lunch whilst she was expressing.

Mrs Mellor brought claims for direct and indirect sex discrimination as well as harassment on the grounds of sex against the school.

Employment Tribunal decision

The Employment Tribunal upheld Mrs Mellor’s claim for harassment but dismissed her claims for direct and indirect discrimination. The Tribunal noted that there were no reasons where a biological male would need to express milk and therefore production of breast milk was a “exclusively biologically female function” and no claim for either direct or indirect sex discrimination could proceed.

The Tribunal found that Mrs Mellor had informed the Trust of her need to have a room to express on no less than 6 occasions and the Trust did not action this. The Trust tried to rely on an argument that Mrs Mellor stated that she “may” need to express in her correspondence in June 2020. The Tribunal rejected this argument and found that the Trust also failed in their duties to carry out a risk assessment on her return to work, where the requirement to express would have been addressed.

The Tribunal held that Mrs Mellor was left with no choice but to express in the toilets and her car due to the Trusts’ failures. It held that the Trust had created an atmosphere which was humiliating and degrading. The Tribunal found that the conduct which Mrs Mellor had been subjected to was also unwanted and was related to her sex as the need for privacy arose from the intimate nature of the activity and because she was a woman and therefore her claim succeeded.

Comment

In its judgement, the Tribunal made particular mention of the Trusts lack of risk assessment and addressed the importance of these to ensure any concerns on a woman’s return from maternity leave is picked up. Employers should therefore be mindful when employees return from a period of maternity leave to ensure any issues are addressed in a timely manner.

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