Can an employer prevent an employee returning to work early from maternity leave because she is still breastfeeding?
No, unless the employer can suspend her on "maternity grounds". It is permissible to suspend a breastfeeding employee on maternity grounds only where a risk assessment identifies risks to the breastfeeding mother and/or her child and those risks cannot be overcome by adjusting her working conditions or hours of work. Section 67 of the Employment Rights Act 1996 further provides that a breastfeeding mother has the right to be offered suitable alternative employment, where available, before she can be lawfully suspended on maternity grounds.
In addition, the employer has certain legal obligations to support an employee who is continuing to breastfeed. Under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), the employer is required to assess the risks to a breastfeeding mother or her baby of any process, working conditions or substances to which they might be exposed, and take practical action to control those risks. Further, the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) require the employer to provide suitable facilities for breastfeeding mothers to rest. Guidance from the Health and Safety Executive goes further and recommends that employers provide a private, healthy and safe environment for nursing mothers to express and store milk, and states that it is not suitable to use toilets for this purpose.
If an employer refuses to allow a woman the flexibility she may need to breastfeed or express milk, this may be indirectly discriminatory, unless the employer can objectively justify its policy.