The Equality Act 2010 prohibits three types of harassment - sexual harassment, less favourable treatment because the employee rejects or submits to harassment, and harassment related to sex. In Gibbins v Cardiff & Vale University Local Health Board an employment tribunal found that a failure to provide a room with a lockable door for expressing milk was harassment related to sex.
What happened?
Prior to returning from her first maternity leave the claimant notified her employer that she wished to continue breastfeeding her baby, and that she needed a lockable room to be available to her for expressing milk. The employer had Combining Breastfeeding and Returning to Work Guidelines. These set out the requirement for a line manager to conduct a risk assessment, to take reasonable steps to protect the employee from any risks that might be identified and to provide somewhere for pregnant and breastfeeding employees to rest. It also encourages provision of "a private, healthy and safe environment for the employee to express and store milk". It goes on to say, "An office with a comfortable chair and a 'do not disturb' sign may be sufficient to meet this requirement."
When the claimant returned to work, she was provided with a room to express milk, but she could not lock the door. The claimant was advised to prop a chair against the door to lock it, which the claimant believed was a fire hazard, and to put a 'do not disturb' sign on the door. On one occasion, a colleague walked in on her while she was expressing. The claimant was left feeling vulnerable, degraded, and concerned for her privacy. Two months after her return, the claimant was told that a lock had been fitted. When she raised a grievance about her treatment the claimant was told "things would be different" after her second pregnancy.
Following her second pregnancy, the claimant returned to work once again. This time although there was a lockable room, it was only available at certain times of day. The claimant needed to express at times when the lockable room was not available. She also claimed that she was not given anywhere to sterilise her equipment and that she felt like a burden.
The employment judge found that the failure to provide a lockable room had the effect of creating a humiliating environment for the claimant and upheld the claim of harassment related to sex. Other claims of direct and indirect sex discrimination and pregnancy and maternity discrimination were not successful.
What employers should learn from this?
This employer had guidance in place around the provision of a private room for expressing, which many other employers may not. Despite this apparently strong start, the employer did not respond to the requests made by the employee. While employers would not be expected to comply with unreasonable requests, they should listen to requests made by returning mothers and assess whether they can reasonably be complied with. That may include doing more than is set out in related guidance or policies. Here, the lock that was eventually fitted on the door to the room only cost £5.50, but made the claimant feel comfortable whereas putting a 'do not disturb' notice on the door did not.
As well as there being a risk of harassment and discrimination, this is also a public health issue. There is no statutory obligation to provide facilities, and as the judge in this case pointed out "Different expressing mothers will have different needs". However, there is the Health and Safety Executive Guidelines that recommend employers should provide both suitable facilities for expressing, and a fridge for storing the milk.
This is also not the first time a failure to provide suitable facilities for expressing has been found to be harassment related to sex. In 2022, a claimant was successful when her employer entirely failed to provide facilities and she had to express in her car in a school playground, and in the toilets. Employers should be clearly aware of the risk they are running if they do not provide facilities, and these cases are likely to result in awards being made for injury to feelings even if there is no wage loss involved.
