Mothers returning from maternity leave may wish to continue to breastfeed their child once they have returned to work.
Despite this, research conducted by the Institute of Social and Economic Research at the University of Exeter found that returning to work reduces the likelihood of continued breastfeeding by 9.6%.
In terms of workplace support, the University of Reading found that, although most line managers wish to support breastfeeding employees, many are unclear on how to do so. Just 23% reported having a formal breastfeeding policy in place and more than half had not received sufficient training to support returning mothers.
So, what practical steps can employers take to create a workplace where mothers feel comfortable expressing milk at work, if this is their preference?
Legal position
Regulation 25(4) of the Workplace (Health, Safety and Welfare) Regulations 1992) states that employers “shall” (i.e. are required to) provide suitable facilities in the workplace for pregnant women or breastfeeding mothers to rest.
When considering what would constitute “suitable facilities,” the Health and Safety Executive guidance “Protecting pregnant workers and new mothers: employers” recommends providing a clean, private space, which includes an area to lie down. Normal toilet cubicles are not regarded as suitable for this purpose. A suitable facility for expressing milk could be a private meeting room without windows, that can be locked or clearly marked as occupied. The guidance also recommends that employers should provide appropriate facilities for storing expressed milk, such as a fridge.
Elsewhere, the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999) require employers to carry out assessments of the risks to the health and safety of employees that they may be exposed to while they are at work. Where the employee has notified their employer that they are breastfeeding, the MHSWR 1999 require that the general risk assessment must also include an individual assessment of any risks to the health and safety of that employee as a breastfeeding woman and to their baby, where the nature of the work or workplace exposes them to physical, biological or chemical agents that could pose a risk to the woman or her baby because she is breastfeeding. If the risk assessment reveals any risks, the employer must address these and ensure action is taken to avoid the same. In practice, this may involve discussing with the employee any health concerns, personal circumstances and potential workplace risks. The MHSWR 1999 specifically state that where any potential risk to the health and safety of the employee or her baby has been identified, then among the steps that the employer should consider is altering the employee’s working conditions or hours of work. If taking those steps does not alleviate the risks, or if there is no alternative work that could be offered to the employee which would avoid such risks arising, the employer may have to suspend the breastfeeding employee on maternity grounds (with pay) for as long as necessary to avoid that risk.
The potential ways to mitigate serious risks will vary depending on the workplace environment and may be more onerous on the employer depending on the specific workplace and environment. For example, there are likely to be fewer risks for an employee in an office environment compared to a factory worker in a more physically demanding role or where there is less access to private spaces. The EHRC Employment Statutory Code of Practice has a section about breastfeeding which states that whilst there is no statutory right for workers to take time off to breastfeed, employers should try to accommodate women who wish to do so. This may involve “altering [the employee’s] working conditions or hours of work”. It further states that, following a risk assessment, an employer may wish to ensure that the worker takes extra breaks or spends more time sitting than standing, for example. The Code makes the point that a refusal to allow a woman to express milk or to adjust her working conditions to support breastfeeding may amount to unlawful sex discrimination.
Separately, an employee may also make an informal or formal (statutory) flexible working request to change their working hours, location or pattern so as to allow them to be able to breastfeed. This is a right available to all employees. For example, the individual may prefer to work from home during the period that they are breastfeeding, even if the workplace provides suitable facilities as set out above.
Employees’ right to request flexible working is a day-one right and employees can make two formal (statutory) requests within any 12-month period. Flexible working arrangements can include changes to working hours, start and finish times, working days, or place of work. Employers must consider any request in a reasonable manner, which includes assessing the advantages and disadvantages of the request and discussing possible alternatives. If the employer proposes to reject the request based on one of the permitted grounds, then they must also consult with the relevant employee before doing so. An employer has two months to conclude any flexible working request under the current statutory framework. Note also that one of the changes to be implemented under the Employment Rights Act 2025 is that from some time in 2027 (the precise date is yet to be confirmed), employers will be required to show that any refusal of a flexible working request is reasonable.
Refusal to comply with the statutory requirements of dealing with a flexible working request can lead to an Employment Tribunal claim in which the Tribunal could award the employee up to 8 weeks’ pay. However, a claim that would be much more likely to arise in these circumstances would be a claim of indirect sex discrimination under the Equality Act 2010. A successful claim of this nature could lead to an award of loss of earnings well above 8 weeks’ pay as well as compensation for injury to feelings.
If an employer receives a flexible working request from an employee in these circumstances, we advise that the employer seriously considers accepting the request, particularly if the employee has been clear that the variation requested is one that they would like to be for a temporary period only. However, if the employer intends to reject the request, we recommend obtaining legal advice before responding.
Practical tips for employers
- Have a breastfeeding policy – A specific policy around breastfeeding in the workplace can help ensure that employees are aware of the facilities and support available to them and ensures managers are aware of what their employees are entitled to.
- Provide suitable facilities – where possible, provide a clean, private space with comfortable seating, access to power, washing facilities and safe refrigeration for storing expressed milk. The facilities should be conveniently located and ensure an appropriate level of privacy.
- Create open conversations around breastfeeding – Encouraging conversations around breastfeeding in the workplace is important for creating a safe and comfortable environment.
- Speak to returning mothers – Having a ‘return to work’ conversation with mothers after maternity leave will allow employers to understand individual preferences when it comes to breastfeeding and ensure the necessary risk assessments have been carried out and that support is in place, if needed.
- Create a ‘buddy’ system – Connecting the returning individual with someone who was once in their position is a good way to help the returning individual feel supported on a more informal basis.
- Allow flexibility in working patterns – Allow flexibility in working patterns by accommodating where possible, adjusted hours or additional breaks to enable employees to express milk or breastfeed.