Many new mothers want to continue to breastfeed when they return to work.  As well as providing a supportive environment for mothers returning from maternity leave, employers must ensure they meet their legal obligations.

In the UK, breastfeeding mothers have some legal protections which are dealt with under general health and safety and sex discrimination laws. Under this legislation, employers have a legal duty to provide:

• Health and safety protection
• Flexible working hours and protection from discrimination
• Rest facilities
• Protection from harassment

In this guide for employers, we consider the legal obligations and ways to support mothers who want to continue to breastfeed when they return to work.

Breastfeeding at work: employer considerations 

Breastfeeding can sometimes be a sensitive issue and one your employee may feel uncomfortable about discussing with you. But it is an important step to help with their transition back into the workplace following maternity leave. Breastfeeding helps maintain the wellbeing of the returning employee and can avoid health problems such as mastitis or other related issues.

It is good practice for employers to talk with any employees who are breastfeeding about what they could reasonably and proportionately do to help to ease the employee’s return to work. Employers may consider nominating a female member of staff to conduct these discussions if there is an issue of appropriateness or where the breastfeeding employee would feel more comfortable.

You will need to strike a balance between the needs of a breastfeeding employee, bearing in mind that it will only be for a temporary period, and any extra work their colleagues may have to do over this time. Employees may request temporary changes to their working patterns for a variety of reasons, so you should explain your decision from this point of view.

Enabling breastfeeding employees to continue to do so at work may encourage loyalty, and demonstrate to other workers, whatever their gender, that you support family-friendly policies. The crossover here is that your company then benefits from the skills of the breastfeeding employee returning earlier than would have otherwise been the case. And greater employee retention.

Employers should, however, be wary of applying inadvertent pressure on the employee to return to the workplace, because they may not be ready. Employees who feel pressurised into returning to work following giving birth will rarely be happy, which can be a source of friction.

Practical considerations 

For those employees who live close to their place of work, breastfeeding may mean simply going home or to a nursery nearby to feed their baby. Alternatively, it could mean a relative or childminder brings the baby to the workplace to be fed. However, in most cases, it will probably mean the employee will express milk, which they will then store in a cool place. Expressing milk generally requires the use of either a manual or electric pump. The pump and bottles must be sterile so that the milk does not become contaminated, so it is essential that the breastfeeding employee has access to clean, hygienic facilities to express milk.

Creating the right environment

It is good practice to have a policy on breastfeeding at work setting out how requests from employees returning after maternity leave for changes to their working conditions will be treated. Having a policy will help you make fair decisions when handling a request, which must be handled in a way that avoids claims of sex discrimination or unfairness from employees.

If you have such a policy, you should make it known to your employees. It could form part of your maternity or flexible working polices, for example, rather than something stand-alone.

As with any employee request to temporarily adjust their working conditions to accommodate a domestic situation, a request to breastfeed at work should be treated no differently. Good practice dictates having discussions with other relevant and potentially affected members of staff around how such requests would impact on their job and how their duties may change for a short period.

Engaging with potentially affected employees will help you explain the business need for these temporary changes. Employee feedback also highlights any problems that may impact on the efficiency of the business and whether the request can be approved.

If the breastfeeding at work request is approved, you must guard against inappropriate behaviour towards an employee who is breastfeeding. This is achieved by getting the facilities right at the outset and also preventing ‘banter’ that the breastfeeding employee may find humiliating or offensive. Such banter could amount to unlawful harassment under the Equality Act 2010.

Getting your facilities right

Employers have a responsibility under the Workplace (Health, Safety and Welfare) Regulations 1992 to designate ‘suitable facilities’ for a breastfeeding employee to ‘rest’. The Approved Code of Practice states that these facilities should be conveniently located in relation to sanitary locations and, where necessary, include a place to lie down.

It should not come as a surprise for the breastfeeding employee to request a private, hygienic, safe and secure area where breast milk can be expressed. This could be an unoccupied office or an area used for meetings that can be screened off. If you are in doubt about what to do, simply ask the breastfeeding employee what would be appropriate.

A word of caution: it would be highly inappropriate to expect your breastfeeding employee to use toilets or sick rooms because there may be a hygiene or health risk.

If, after careful consideration, you are physically unable to provide an appropriate space, you should discuss this with the employee to work out if there is an alternative or alternative facility. Sometimes, simple adaptations can be made at very little cost.

Fridge and storage

Most organisations have staff break areas that contain a cool area or fridge. Employers should think about where expressed breast milk could be stored safely. This might be in a re-sealable container for hygiene purposes. It is good practice to discuss any storage preferences the employee may have beforehand, so you can make the necessary arrangements.

Health and safety protection

If an employee’s working conditions stop them from breastfeeding, they may be able to argue their health and that of their child is being put at risk. Additionally, some hazardous substances can enter breastmilk and could pose a real risk to the baby. If your organisation brings an employee into contact with a dangerous substance, you should take applicable steps to make the job safe. If the job cannot be made safe, then the employee must be transferred to a suitable alternative role or suspended on full pay.

Under health and safety laws, employers who employ women of childbearing age, in addition to a general risk assessment, must carry out a specific risk assessment for expectant and new mothers arising from any working conditions, processes, or physical or biological and chemical substances. If the assessment reveals a risk, you must do everything reasonable to remove it or prevent the employee’s exposure to it. You must also give the employee information on the risks and what action has been taken or needs to be taken.

It is a legal requirement for employers to regularly review risks in the workplace, however there is no specific legal obligation to conduct a separate risk assessment for mothers intended to breastfeed on their return to work. or an employee returning from maternity leave. Despite this, employers are generally advised to carry out an assessment to ensure they are providing appropriate support for the mother and to determine whether any additional action needs to be taken.

Making and considering requests

You may first receive an informal request for breastfeeding at work as part of the usual Keeping in Touch (KIT) meetings which are held while the employee is on maternity leave. This gives you an opportunity to discuss how to manage this issue, consider the request, and prepare for the employee to return to work more easily and effectively.

You should make it clear how an employee should formally request the temporary changes, which should ideally include what changes are required, and suggestions as to how the business can accommodate them.

Considering requests for additional breaks

If you are going to consider any requests for additional breaks, you must do so objectively and reasonably against the likely impact any changes may have on your business. In any event, you should take care not to discriminate against breastfeeding employees. If you cannot grant additional breaks, you should think about extending the employee’s usual breaks, such as a mid-morning tea break, or leaving a little earlier in the day to minimise disruption to your business, for example.

Use of flexible working

The Children and Families Act 2014 allows employees to request flexible working for any reason. Changes surrounding breastfeeding at work are likely to be temporary, and therefore a permanent change to an employment contract would not be applicable. Although a temporary change to working arrangements may help both the employer and the employee to meet their respective business and breastfeeding needs.

Employers may find it useful to include the needs of breastfeeding employees in their flexible working policy. This can help you to make objective, correct, and fair decisions. If after considering the request for breastfeeding at work you turn it down, you should set out the business reasons for refusal to the employee.

Supporting breastfeeding mothers at work

Regular reviews

It is good practice to hold regular reviews to monitor how the arrangements are working for breastfeeding mothers. However, the reviews should not be used to pressurise the employee to give you a timescale for return to their usual working practice. A breastfeeding employee may not know how long they will breastfeed for, and to some extent, it may be beyond their control. She may have initially planned to breastfeed for a year but could encounter physiological issues, which make it hard for her to continue. On the other hand, she may have intended to only breastfeed for a short time, but may find she changes her mind, or that her baby does not take to formula milk easily. In that case, she may end up breastfeeding for much longer than she initially planned.

In any event, the additional stress and anxiety for the employee created by either having to come up with a specific return date, or the creation of a time limit by an employer, may outweigh the benefit of getting back to ‘normal’.

Discrimination

An outright refusal to allow a breastfeeding employee to express milk or to adjust their working conditions which lets them continue to breastfeed could amount to unlawful discrimination. However, if the request has been considered objectively, discussed with the employee, and you still cannot accommodate any additional breaks without there being an unacceptable impact on the business, it is much less likely to constitute indirect sexual discrimination.

Good practice would be to deal with a request for breastfeeding at work in the same way you would for a temporary change to working conditions from any of your employees, for any reason.

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workforce management, including supporting employees returning to work after maternity leave. Working closely with our specialists in HR, we can advise on positive steps to support employee wellbeing and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.

Breastfeeding at work FAQs

Last updated: 16 January 2022