By Albany HR
As an owner of a small business, you might not have given much thought to what happens when a member of your team returns from maternity leave and is still breastfeeding.
There are specific legal duties you need to meet. Most small business owners aren’t aware of them.
Get it wrong and you could face a discrimination or harassment claim, with financial damages that are uncapped at tribunal.
World Breastfeeding Week falls in the first week of August each year. It’s a good prompt to check you’ve got things in order.
Here’s what you need to know and what you can do about it.
Your duty to carry out a risk assessment
Under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, you’re required to carry out a risk assessment for new and expectant mothers. That obligation doesn’t end when someone comes back from maternity leave. If your employee is still nursing, the duty still applies.
Many business owners assume the risk assessment conversation is only relevant during pregnancy. It isn’t. A returning mother who is breastfeeding or expressing milk needs to be included in that process too.
Providing a suitable space
You must provide somewhere appropriate for your employee to breastfeed or express milk. The space needs to be clean and private.
A toilet cubicle does not count. Both HMRC and HSE guidance are clear on that point, and it comes up more often than you’d expect.
You don’t need a purpose-built room for this. A spare office or a private area with a lock, a chair and a flat surface will do. The main thing is that your employee can use the space with dignity.
Flexibility around working hours and breaks
The Employment Rights Act 1996 requires you to reasonably accommodate requests for adjusted hours, reduced shifts or flexible breaks to allow for breastfeeding or expressing.
ACAS guidance goes further and encourages employers to allow short, unpaid breaks or slightly adjusted working patterns for this purpose.
One thing to be aware of: you’re not legally obliged to pay for breaks taken to breastfeed or express. But you do need to allow them where it’s reasonable to do so.
Making sure your employee feels supported
If a member of your team feels pressured or embarrassed about breastfeeding at work, that could form the basis of a harassment claim. You need to do what you reasonably can to make sure she feels comfortable asking for the space and time she needs.
A simple conversation before she returns from maternity leave can make a real difference. When someone knows their employer has already thought about the arrangements, they’re far more likely to come back feeling settled and committed to staying.
The discrimination risk you might not see coming
You don’t have to be deliberately unhelpful for a claim to arise. If an employee feels she has no choice but to leave because you haven’t provided a private space or allowed breaks, she could bring a constructive dismissal claim.
If she’s dismissed or treated unfairly because of breastfeeding, that dismissal could be found to be automatically unfair.
Inconsistent treatment from a line manager, or simply not putting the right provisions in place, can be enough to trigger a claim. The financial consequences at tribunal are potentially uncapped.
What does good practice look like?
Getting this right doesn’t require loads of effort. A few practical steps will cover most of what’s needed:
- Put a written policy in place so that all managers handle requests consistently
- Identify a suitable private space (not a bathroom) that your employee can use
- Allow reasonable flexibility around break times
- Have a conversation with your employee before she returns from maternity leave, so she knows what to expect
That last point is worth highlighting. A returning mother who feels supported from day one is much more likely to stay with your business long term. You’ve already invested time and energy in that person. Keeping them engaged and happy makes good business sense.
Why this matters for your business
Retention is the real issue here. Coming back from maternity leave is already a sensitive time for any employee. If the experience feels difficult or unwelcoming, you risk losing someone valuable.
Parental rights are being strengthened under the Employment Rights Act, with enhanced maternity protections expected from 2027 (including the drop to a six-month qualifying period for ordinary unfair dismissal protection). . HR consultancy services in Edinburgh are seeing more and more businesses wanting to get ahead of these changes now, rather than scrambling to catch up later.
Sorting your approach out now is far easier than dealing with a problem after the fact.
How I can help
I can carry out a risk assessment for new and expectant mothers, help you put a clear breastfeeding and expressing policy in place, and make sure your managers know how to respond to requests properly.
If you’re unsure whether your current setup meets the legal requirements, it’s worth having a conversation about it.
As an outsourced HR consultant in Edinburgh, I work with small businesses to get these things right without overcomplicating them.
Get in touch and let’s talk it through. You can book a discovery call and we’ll look at where you stand and what might need to change.
