The new Equality Act has introduced new protection for breastfeeding mothers and hospitality businesses must be aware of their legal duty if a customer complains about breastfeeding. Laura Kearsley explains
There have been a number of high-profile incidents of businesses, the hospitality sector included, refusing women permission to breastfeed or asking them to do so in a back-of-house location out of sight of other customers. The ensuing bad press has sparked a campaign for greater freedom and protection for breastfeeding mothers.
The Equality Act became law in October and introduced further protection for breastfeeding mothers. The Equality Act is supported by a code of practice which is currently in draft form, however, it is not envisaged that there will be any great changes between now and when it comes into force.
It is now unlawful to treat a female customer who is breastfeeding a child up to 26 weeks' old unfavourably or put her to a disadvantage because she is breastfeeding. Unlike other kinds of discrimination, a woman does not have to identify a "comparator" - a person, or hypothetical person, compared with whom she has been treated unfavourably - for her complaint to succeed.
The Equality Act does not specifically address the situation where a woman is breastfeeding a baby who is older than 26 weeks. However, the draft code of practice states that treating a woman less favourably because she is breastfeeding a baby who is more than 26 weeks old could amount to sex discrimination if she has been treated less favourably than a comparator is, or would be, treated in comparable circumstances.
In a nutshell, this means that you should allow mothers to breast-feed young babies within your premises as they see fit.
It will be unlawful discrimination not to allow mothers to breastfeed or to ask them to breastfeed out of sight of other customers, for example, in a store room or the toilets.
Disgruntled mothers will be able to bring claims for injury to feelings against businesses that refuse to comply. They will also be able to ask the courts to make a declaration to the effect that they have been discriminated against or an injunction to stop the business continuing to refuse to comply.
Mothers could also contact the Equality and Human Rights Commission, which has powers to conduct an investigation into the business complained of. If it finds that a business has failed to comply, it can require the business to prepare an action plan or recommend steps for the business to take to address its refusal to comply. It can also apply for an injunction to prevent a business from refusing to allow women to breastfeed.
â- Give the option of private or more discreet locations if requested, but do not insist on their use.
This creates a potential for complaints from customers who are not tolerant of public breastfeeding, which in turn creates a conflict for businesses, because legal obligations are contrary to the customer's views.
If a customer makes a complaint about a female customer who is breastfeeding in public in your business, if you or your staff ask her not to breastfeed at all or to breastfeed elsewhere, you will still be unlawfully discriminating against her.
To comply with the legal requirements, if a customer makes a complaint, your staff should politely inform them that the management supports breastfeeding and is legally obliged to do so and, therefore, you are not at liberty to approach the breastfeeding customer or ask them to refrain or move somewhere more private.
From a business perspective, this will have to be handled sensitively to avoid any loss of custom.
Laura Kearsley, associate, Weightmans