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Flexible Working Requests & Breastfeeding

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This issue was considered by the Employment Tribunal (ET) in the case of MacFarlane and another EasyJet Airline Company Ltd.

This case was brought by 2 female employees who worked as cabin crew for EasyJet and who had recently returned to work following a period of maternity leave. Upon their return, both employees made a flexible working request to work no more than 8 hours a day in order to accommodate their desire to continue to breastfeed their babies by expressing breast milk. Both claimants submitted fitness to work certificates from their GP’s to support their application.

Both flexible working requests were refused by EasyJet. The reasons for the rejection was so that the airline could deliver its flying schedule as well as avoiding flight delays and cancellations. After taking a period of sickness, both claimants were given temporary ground duties.

Despite the temporary resolution, both claimants brought claims of indirect sex discrimination.

After considering the arguments put forward by the claimants and EasyJet, the Tribunal ruled in favour of the claimants. The Tribunal’s reasoning was that the provision, criterion and practice (“PCP”) applied by EasyJet by requiring its crew members to fly according to the roster pattern with no restriction as to hours of work, put the claimants at a particular disadvantage. Although EasyJet tried to argue the PCP was justified, the Tribunal were unable to find evidence that EasyJet had granted individual rosters and that those had caused problems previously. EasyJet’s counter argument was therefore rejected by the Tribunal. The Tribunal further held that it was unreasonable to ask the claimant’s how long they expected to continue breastfeeding. The Tribunal also recommended that the claimants’ sickness absence be discounted for the purposes of future attendance management or redundancy scoring process.

The message from this case is clear. It illustrates the importance to accommodate the needs of breastfeeding mothers. Moreover, when defending a claim for indirect discrimination, it is essential for an employer to show that the PCP is a proportionate means of achieving a legitimate aim.