Breastfeeding and the risk of indirect sex discrimination

In the case of McFarlane and another v easyJet Airline Company Ltd, the Employment Tribunal (Tribunal) considered whether the well-known airline had acted unlawfully by refusing the flexible working requests of two female employees returning from maternity leave. 

The Tribunal’s decision was that the airliner had indirectly discriminated against the women by refusing to grant their flexible working requests, the purpose of which was to help them to continue to breastfeed their young children after they returned to work. 

Cynthia McFarlane and Sara Anbacher (the Claimants) were both cabin crew members employed by easyJet returning from maternity leave but still breastfeeding their young children. 

Prior to returning from maternity leave, the Claimants both made separate flexible working requests asking not to be rostered to work shifts of longer than eight hours. This was on the advice of their respective GP’s who had issued fit notes stating the Claimants may be fit to work provided their shifts were limited to no longer than 8 hours. This was to manage the risk of developing mastitis, which their doctors advised could occur if they went for long periods without breastfeeding or expressing milk.

easyJet rejected the Claimants’ flexible working requests despite the medical evidence presented to them. The effect of this was that both women were prevented from working and either went on unpaid leave or sick leave until they were both eventually offered temporary ground duties.

easyJet gave a number of reasons for rejecting the flexible working requests for bespoke rostering. These included ensuring that the airline could deliver its flying schedule and avoiding flight delays and cancellations. It argued that rejecting bespoke rostering arrangements was a proportionate means of achieving those aims.

The Claimants brought claims for indirect sex discrimination to the Tribunal.

It was agreed that easyJet operated the following provision, criterion or practice (PCP):

“Crew members fly to the flying patterns they are rostered; there is no restriction on the length of the day that a crew or staff member can complete; crew members may be required to work more than 8 hours continuously”.

The Tribunal found that this PCP was essentially a blanket ban on bespoke rostering arrangements which put women at a particular disadvantage compared to men and that the Claimants had themselves been disadvantaged. 

The Tribunal found that the effect of easyJet’s refusal of the flexible working request was to put the Claimants in the position of either working a normal roster (which was essentially a requirement to cease breastfeeding or expose themselves to the increased risk of mastitis) or to continue breastfeeding but suffer financial disadvantage because they would not be able to work certain shifts.

The Tribunal held that easyJet could not objectively justify this PCP and found that the Claimants had been indirectly discriminated against because of their sex.

The Tribunal was heavily influenced by the fact that easyJet was not able to produce any evidence to show that granting bespoke rostering schedules had caused them any difficulty. In fact, it emerged during the hearing that easyJet had previously granted a permanent bespoke roster restricted to 8 hour shifts to another cabin crew member who had an increased risk of developing Deep Vein Thrombosis if required to work longer than 8 hours. 

The Tribunal awarded the Claimants compensation in the middle Vento band of £8,750 and £12,500 respectively for injury to feelings.  In addition, the Tribunal made the following recommendations:  that easyJet should (1) credit back any annual leave taken by the Claimants to avoid zero or reduced pay between the date of making their flexible working requests up to the date of the hearing (2) ignore any occupational sick pay which was paid to the Claimants during the same time when calculating future entitlements to sick pay; (3) discount any absences taken during this time for the purpose of attendance management or redundancy scoring; and (4) not issue any disciplinary warnings for any such absences.

This case serves as a reminder to employers of the need for cogent evidence to support their reasons for rejecting flexible working requests. Without it, employers may find themselves unable to defend resulting claims for indirect sex discrimination.

In this case, the fact that easyJet was unable to produce any evidence that granting bespoke rostering schedules had caused, or would cause, any difficulty appears to have been their undoing. It was not enough that easyJet believed that granting the requests would cause them difficulty and the airliner’s evidence to this effect was given short shrift by the Tribunal as “partially informed speculation”.

Employers should therefore ensure that all flexible working requests are carefully considered and, if they wish to reject a request, that they have evidence of business reasons which are sufficient to justify doing so.

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