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Esther Smith

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Ask the Expert: Do employers have to pay for post-natal time off?


The question

A member of staff has just returned from maternity leave.
She is still breast-feeding her child and needs to expel her milk at least twice a day. She works a 40-hour week, which is now being reduced by between 30 and 40 minutes each day due to this process.
The employee says that she would like to keep feeding her child for at least another 18 months, which will add up to a lot of lost hours.
She is obviously being allowed time off to do this and a room has been put aside for her, which is warm and comfortable. She also has the use of a small refrigerator, in which to keep the milk during the day, which is not used by any other staff members.
I am aware that time off to keep doctor/midwife appointments in relation to antenatal care is paid for. But this time off is now post-natal and I am unable to find any information as to whether we have to pay for time off here too. What is the legal position here and how can we best tackle this situation?
The legal verdict
Martin Brewer, a partner at Mills & Reeve
The first point to note is that there is no statutory right to time off work for breastfeeding or for expressing milk. However, facilities do have to be provided. Guidance from the Health & Safety Executive says:
"It is not suitable…to use toilets for expressing milk. [The] employer may provide a private, healthy and safe environment…to express and store milk, although there is no legal requirement for them to do so. However, [the] employer is legally required to provide somewhere for pregnant and breastfeeding mothers to rest and, where necessary, this should include somewhere to lie down."
This statement reflects the guidance issued by the European Union in ‘Guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety or health of pregnant workers and workers who have recently given birth or are breastfeeding (Council Directive 92/85/EEC).’
Among many things, this document says that employers must assess any risks to the safety or health of workers as well as any possible effects in relation to breastfeeding. It specifically recommends that other facilities (such as a private, clean environment, other than toilets, for expressing milk and a fridge for storing it) should be provided.
Furthermore, Volume five of the Equality and Human Rights Commission’s Code on rights at work states:
"Your employer has a legal duty to provide suitable rest facilities for breastfeeding mothers to use. Although there is no legal right for workers to take time off to breastfeed, employers should try to accommodate mothers who wish to do this, bearing in mind that:
  • they have a legal duty of care to remove any hazards for a worker who is breastfeeding, and
  • this can include stress and fatigue, and
  • a refusal to allow a woman to express milk or to adjust her working conditions to enable her to continue to breastfeed may amount to unlawful sex discrimination."
So in short, your employee must be allowed time to express milk and be provided with facilities to enable her to do so, but you do not have to allow her paid time off for such activities.
Martin Brewer is a partner at law firm, Mills & Reeve LLP.

Esther Smith, a partner at Thomas Eggar
There are some maternity rights that continue even after the baby is born and the mother returns to work. For example, it is a legal requirement that you provide a breastfeeding employee with suitable facilities to rest and you also have an obligation to assess and remove any potential hazards.
There is also Health and Safety Executive guidance, which recommends providing facilities specifically for breastfeeding mothers.
However, there is no legal right that specifically allows employees to take time off for breastfeeding, although this is something that is currently being proposed by Europe and so may well be implemented in the UK in future.
Therefore, while the staff member has no legal right to be paid for the breaks you describe, she clearly expects be paid for them at the moment and it appears that you have operated on this basis since her return.
As a result, your best option may be to try to agree a flexible working arrangement with her, if practicable, which would see you either withholding pay for the additional break times or paying her for the breaks but requiring her to make up the time elsewhere. 
Removing facilities or refusing to be flexibile could give rise to an indirect sex discrimination claim, however (as the removal of these breaks would only affect women).
To defend such a claim, you would need to show that your actions were justified and, unfortunately, there is a degree of uncertainty as to whether an argument based on cost alone would be sufficient.     
It appears that the most sensible option here is for you to try to reach an agreement with your employee, which would either allow you to deduct money or allow her to work flexibly.
Before acting, however, you should consider whether your approach to people taking additional breaks is consistent. If, for example, you allow employees who smoke or those with certain religious beliefs to take extra paid breaks, you could face a claim for direct sex discrimination if you refuse to allow this worker paid breaks for breastfeeding.    
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.

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