Breastfeeding when returning to work: What’s the law?

For many women, returning to work after maternity leave can feel like a daunting prospect.

From re-familiarising themselves with the day-to-day responsibilities of their role, through to re-acquainting themselves with colleagues and clients and ensuring that all of their relevant qualifications and accreditations are up to date, the first few weeks and months are often particularly busy.

On top of the added responsibilities of nursery and childminder drop offs, the restrictions brought about from Covid-19, and likely the lack of a consistent full night’s sleep, returning to work can naturally leave some mothers feeling stressed and overwhelmed.

While most employers are increasingly switched on in this regard - demonstrating a real desire to do as much as possible to make the transition smooth and manageable - there are, sadly, still many businesses that fundamentally fail to accommodate the needs of a new mum re-entering the workplace.

One of the biggest sticking points is in relation to those who continue to breastfeed or express milk once their maternity leave has ended.

Here, Banner Jones’ Head of Employment law, Katie Ash, looks at the state of current legislation here in the UK. 

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This is a particularly important area of law for many businesses to be aware of for a number of reasons.

Firstly, a failure to comply with the legislation that is in place to protect the rights of working mums could result in a very nasty and costly legal battle. What’s more, many businesses want to engage a diverse workforce that best meets the needs of their customers and clients.

The past few decades has seen broadening opportunities for new parents entering the workplace here in the UK. From the introduction of paternity leave to increasing flexibility of working hours, laws and employer obligations have developed to help support the nervewracking transition back to work.

To that end, accommodating women who choose to have children and then return to their careers must be a priority, and that includes women who decide to continue breastfeeding their baby once their maternity leave has come to an end.  

Remember that there are no legal restrictions in the UK surrounding breastfeeding at work, and so it is important to encourage your employees to be open about their needs, and what it is that you can do to support them.  

Indeed, the law requires employers to protect the health and safety of mothers who have given birth in the last six months, and those who are breastfeeding – regardless of how long a person chooses to breastfeed.

But what does this really mean?

Firstly, those returning to work who are choosing to continue breastfeeding should notify their employer in writing of their intention to do so. On receipt of the letter, a workplace risk assessment should be carried out and all reasonable efforts should be made to remove any health and safety risks.

Whilst there is no legislation which obliges an employer to provide facilities for breastfeeding, the Health and Safety Executive (HSE) recommends that in meeting their duty of care to breastfeeding mothers, employers should provide a suitable working environment which is private, clean and safe, and which is suitable for breastfeeding mothers to both express and store milk.

The Approved Code of Practice issued by HSE says that this should enable the mother to lie down if she chooses. The toilets are not a suitable place to express breast milk.

Whilst the law doesn’t currently allow time off for breastfeeding breaks, ensuring that your employees have sufficient rest breaks comes under your obligation to make sure that they and their baby’s health is not at risk.

I would strongly advise having a conversation with your employee about your company’s specific breastfeeding policies, and to try to introduce a plan that meets the needs of both the business and the individual. This should include a discussion surrounding the length and location of breaks.

Employees in this situation are also entitled to submit an application to work flexibly. This could include a change in hours, days or location of work, and unless agreed as a temporary measure, will result in a change to their contract.

Keep in mind that you have a legal obligation to consider any request for flexible working, and may only refuse if there is a good enough reason which falls within the 8 permitted reasons under statute why such changes to a contract may affect the company.

Equally, if you do not provide a member of staff with a safe place to breastfeed or express milk, this may amount to sex discrimination.  

Ultimately, the best way to ensure that you, your business, and your employees are protected is to try to find a solution that meets the needs of everyone.

Remember, as an employer you are permitted to maintain contact with your staff while they are on maternity leave. This is a great way to ensure that lines of communication remain open, and that you know as soon as possible what you can do to help them with the transition back to work and to make any necessary adjustments.

If you have any questions surrounding the rights of your employees who continue to breastfeed on their return to work, please contact the Banner Jones Employment Law team.