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Thanks to Butterworths.co.uk
What is 'reasonable' right to breast-feed at work?
Contrary to newspaper reports following the case of MoD v Williams,
women have not lost the right to breast-feed at work - they still have a
`reasonable' right to do so. But what does 'reasonable' mean? Marina Wheeler,
barrister at One Crown Office Row, tells Velida Pearce why the courts, not
employers, should decide�
Employment
tribunals are getting drawn into the debate about women�s right to breast-feed
their babies at work. It�s a hot issue, "perhaps because society is still
squeamish about breast-feeding," says Marina Wheeler, barrister at One
Crown Office Row. But first of all, says Wheeler, it is important to note that
"women have not lost the right to breast-feed at work as has been reported
in the media last month". Indeed, some newspapers have recently
misinterpreted a decision of the Employment Appeals Tribunal in Ministry of
Defence v Williams BLD 0910033414 reporting that the position on
breastfeeding at work has been reversed. Following the publication of articles
on the case, both the Equal Opportunities Commission (EOC) and the Maternity
Alliance quickly reacted to put things right: "The decision in this case
has not changed the fact that the law requires employers to give breast-feeding
women a place to rest� The Health and Safety Executive also recommends that
employers provide women who are breast-feeding with suitable rest periods,
access to a private room to express milk, and somewhere to store milk,"
stated the EOC.
Last year Helen Williams won her sex discrimination case after she resigned from
her post as an Engineering Officer as the Ministry of Defence�s guidance on
maternity arrangements stated that if she wanted to continue breastfeeding
beyond her maternity leave period she would have to take unpaid occupational
maternity absence. However, on appeal, the Employment Appeal Tribunal (EAT)
decided that Ms Williams� claims of direct and indirect discrimination arising
from the company�s breast-feeding policy should be remitted for rehearing.
"Breast-feeding is part of motherhood and should be accepted as such,"
says Wheeler. "Many employers recognise that it makes sense to give women
who want to continue breastfeeding after returning to work some flexibility to
enable them to do so."
But the barrister points out a practical difficulty: "The question is what
amounts to �reasonable�. Obviously some workplaces are better suited to
having a room that a woman could breast-feed in, others may not have it readily
available. It may be that all that employers are required to do is what is
�reasonable�," she says.
The barrister maintains that: "It is hard to think of workplaces where it
would not be possible to find a small corner where you could at least put a
chair and screen where a woman could sit down and breast- feed, " and
points out that the decision on "what is reasonable is not something to be
made by companies themselves. It is for the court to judge whether it is
reasonable or not, that makes it an objective standard. This [position], rather
than having the absolute requirement to provide a facility makes it slightly
more acceptable to society and given the social ambivalence about
breast-feeding, this may be right. In time, if this become more accepted and
more usual, the law may move on, although I doubt that there will ever be a
requirement that employers will need to spend pots of money to provide a special
facility."
And if the company cannot �reasonably� accommodate mothers� wishes, do
they have the right to request unpaid leave? Wheeler comments: "At the
moment a woman has the right to return to work within 29 weeks of going off. And
although you don�t have a right to unpaid leave, you have the right not to be
dismissed within that 29 week period. That�s just over seven months and few
women go on breast-feeding longer than that. So there is some kind of right
there."
(02/12/03)
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