By Andrew Knorpel on 6th October 2016
In the last few weeks, two separate employment tribunal judgments have looked at when birth and breastfeeding should be prioritised. In each case, the tribunal found in favour of the claimant employees.
In the first case, Chandana Keerthi Bandara was given a final written warning by the BBC after he chose to publicise the 30th anniversary of a brutal period in Sri Lankan history on the BBC’s Sri Lankan news service ahead of the birth of Prince George. A year later, he was found to have committed further misconduct and, in light of his previous warning, he was dismissed. Although his claim for race discrimination was not upheld, he was found to have been unfairly dismissed because his “manifestly inappropriate” final written warning had formed an important part in the decision to subsequently dismiss him. Due to the fact that he had contributed to his dismissal by his subsequent proven misconduct, his compensation was substantially reduced, but he was still awarded £51,428.
In this case, the fairness of a previous warning (after 18 years’ unblemished service) had a direct effect on the fairness of the subsequent dismissal. The case emphasises that it is important for any employer to check out the circumstances of a previous warning when subsequently relying on that warning when considering dismissal.
And moving from birth to breastfeeding, it has been reported that a tribunal has ruled against easyJet when it insisted that two cabin crew members were not permitted to work shorter than twelve hour shifts even though they were breastfeeding. The airline had apparently adopted this position after managers googled “breastfeeding risks”. The crew had wanted to work a maximum eight hour shift to enable them to express milk before and after their shift, with medical evidence indicating that being unable to express for twelve hours would increase the risk of mastitis.
After the tribunal claims were brought, it is understood that the airline agreed that the crew could carry out ground duties for a maximum period of six months, but no more as it was “a choice” to breastfeed. As the tribunal also found that this restriction was unlawful, employers should be wary of not offering flexibility to a breastfeeding employee if they are to avoid a claim for indirect sex discrimination. And how long might breastfeeding and the employer’s duty to accommodate continue? Well, that’s the employee’s choice.