Ms T Mellor v The MFG Academies 

If you think you have outlawed harassment in your workplace this case is a good reminder that a degrading or humiliating environment can be created by an employer’s failure to act as well as other employees’ inappropriate and offensive actions.  

The employer in this case was a school. It failed to provide a private room for a member of staff to express breast milk on her return from maternity leave. She had no choice, so she maintained in her claim, but to express milk either in her car or in the ladies’ toilets. She chose the latter as it was at the very least more private but did mean she was expressing milk, whilst eating lunch on the dirty floor of a staff toilet. The tribunal held that the school’s failure to provide Ms. Mellor with a private space, and ignoring her multiple requests, did provide an environment which constituted harassment under the Equality Act 2010. 

Surprisingly, the tribunal did not uphold her claim for direct or indirect discrimination despite the school confirming that it would have provided a private room for a male comparator who, because of a medical condition, needed to administer treatment whilst at work. However, the tribunal noted that it was the school’s incompetence and not because of Ms. Mellor’s gender that she was not allocated a room. Clearly, neither is a positive indictment for the school but incompetence does not result in unlimited injury to feelings awards at the tribunal. 

So, what are our learning points from poor Ms. Mellor’s experience.

• Legally
  • Whilst there is no statutory right to provide facilities for breastfeeding or expressing milk at work HSE guidance recommends that employers provide facilities such as a private and clean environment for expressing milk and a fridge to store it
  • There remains a discrimination angle even without the statutory right – whilst Ms. Mellor lost her direct and indirect discrimination claim, her claim for harassment was successful
• Practically
  • Employers should not assume that all maternity returners will have stopped breastfeeding by the time they start work
  • Maternity returners may return to work early as they may no longer be able to cover their costs on reduced maternity pay with the cost-of-living increases – this could increase the number who may still be breastfeeding
  • Planning and communication are key – audit your spaces to work out which could be allocated for expressing milk or breastfeeding. Is the space private, is there sufficient space, and does the general ambiance announce 'we value you and want to make this easy for you' or the contrary message of 'this is a bit of a pain and inconvenience'? It does not have to mean incurring great costs but in most cases takes thought and planning. 
  • As part of your ongoing communication with maternity returners, ask the question as to whether they will need somewhere to express or feed – obviously things may change during the course of the conversation but don’t leave it until the day they start working or, as in the case above, just ignore requests from the employee as you are not sure where you are going to put them!
  • Look on the bright side – the easier you make it for staff to return to work the earlier they may return so easing the burden of covering the maternity leave!