If you have an employee who’s breastfeeding or expressing milk at work, you have legal obligations.
Many small business owners have no idea what they are.
But a small, accidental slip up could land you in hot water. You could be looking at discrimination and harassment claims, with potentially uncapped financial damages if a case goes to tribunal and is awarded.
World Breastfeeding Week runs from 1-7 August. Now is a great time to make sure that you’re up to speed on your obligations, so you don’t get caught out.
What the law says
Risk assessment:
Under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, you must carry out a risk assessment for new and expectant mothers.
That includes employees who have returned from maternity leave and are still nursing.
Providing space:
You are also required to provide a suitable space for breastfeeding or expressing milk.
Suitable means clean, private and appropriate. A toilet cubicle does not meet that standard. HMRC and HSE guidance are both clear on this and it comes up more often than you’d think.
This does not mean that you need a dedicated breastfeeding room. A spare office, a private area with a lock, somewhere with a chair and a surface. It just needs to be somewhere your employee can use with dignity.
Flexible working:
Under the Employment Rights Act 1996, employers should reasonably accommodate a request for adjusted hours, reduced shifts or flexible breaks to facilitate breastfeeding.
ACAS guidance encourages employers to permit short, unpaid breaks or slightly adjusted work hours to breastfeed or express.
You are not, however, legally required to pay for breaks taken to breastfeed or express milk.
Support:
If an employee feels pressured or embarrassed about breastfeeding at work, this could be grounds for a harassment claim.
Employers should do whatever is reasonably possible to make a mother feel comfortable asking for space and time to breastfeed or express.
The discrimination risk
If any employee feels forced to leave because her employer refuses to provide a private space to express milk or allow breaks, she can claim constructive dismissal.
Also, if she is dismissed or penalised in connection with breastfeeding, that dismissal could be found to be automatically unfair.
You don’t have to be deliberately hostile for this to happen. Inconsistent treatment, a dismissive manager or simply failing to provide what’s required can all contribute to a claim.
What good support looks like
Getting this right isn’t complicated. The basics are:
- A written policy that managers are aware of so that requests are handled consistently
- A suitable private space that isn’t a toilet
- Reasonable flexibility around break times for expressing
- A conversation with the employee before she returns so that she knows the arrangements and feels supported from day one
That last point is important: a returning mother who knows her employer has thought about this is far more likely to come back settled, committed and planning to stay.
Doing things properly is also beneficial for business
Supporting nursing mothers well has a real impact on retention.
Returning from maternity leave is already a vulnerable time for employees. If the experience of coming back is difficult or unsupportive, you’re much more likely to lose someone you’ve invested time in.
With parental rights being significantly strengthened under the Employment Rights Act, including enhanced maternity protections coming in 2027, this area is only going to get more scrutiny.
Getting your approach right now is much easier than fixing a problem later.
How we can help
We can carry out a risk assessment for new and expectant mothers, help you to put a straightforward breastfeeding and expressing policy in place and make sure that your managers know how to handle requests properly.
If you’re not sure whether your current approach covers what’s legally required, get in touch and we can talk it through.