In McFarlane and Ambacher v EasyJet an Employment Tribunal has held that easyJet’s refusal to allow certain flexible working arrangements for breastfeeding flight attendants amounted to indirect sex discrimination.
Although there is no statutory right to time off for breastfeeding, breastfeeding employees have the right:
• Not to suffer indirect discrimination because of sex;
• To be offered temporary suitable work; and
• To paid suspension
An employer can justify potential indirect sex discrimination where it imposes a “provision, criterion or practice” which creates a particular disadvantage for women, if the alleged discriminatory practice is a “proportionate means of achieving a legitimate aim”.
The Claimants were crew members employed by EasyJet. They were still breastfeeding their children. EasyJet operated a roster system for its crew. There was no restriction on the length of a working day and crew members could be required to work for more than 8 hours continuously.
The Claimants lodged flexible working requests. They asked not to be rostered to work longer than 8 hours to enable them to express milk before and after their shifts. EasyJet rejected the Claimants’ requests citing various legitimate aims, such as ensuring that the airline could deliver its flying schedule and avoiding flight delays and cancellations. The Claimants were eventually given temporary ground duties, however this did not take effect immediately and they had periods of sickness absence and unpaid leave first.
The Claimants brought indirect sex discrimination claims and presented medical evidence which suggested that delays in breastfeeding or expressing milk would lead to an increased risk of mastitis. The Tribunal held that the practice of requiring staff to work for shifts of longer than 8 hours indirectly discriminated against women and awarded compensation for financial loss and injury to feelings. EasyJet could not justify its roster system, as it was unable to present any convincing evidence to substantiate its claim that allowing some employees to have bespoke rosters would cause serious operational difficulties. The blanket ban on bespoke rosters was unnecessary on the facts.
A flexible working request (whether formal or otherwise) which is linked to pregnancy, breastfeeding or childcare must be given careful consideration and should only be rejected if the employer is satisfied that it has very good grounds for doing so. Employers should be aware that if they reject such a request, this could give rise to an indirect sex discrimination claim under the Equality Act 2010, even if the requirements of the Flexible Working Regulations 2014 are satisfied.