Wednesday 25 April 2018

Legal matters: Breastfeeding and the workplace

I am a lactation consultant and midwife and was delighted to read your recent column about breastfeeding and the workplace. I just want to ask this question. After six months does the mother have any further legal recourse when it comes to breastfeeding when she returns to work?

I had a mother recently trying to decide what to do regarding this exact issue except her baby was seven months old and in the end she decided to wean as it was going to be too difficult to make it work as she is in a very male-dominated job.

Mary Kirwan BL replies:

This is a query affecting a lot of women, judging from the response to this particular column, and you've hit the nail on the head about the major shortcoming in this law.

It's vital that there's every encouragement for breastfeeding because the latest figures show just one-in-four infants are breastfed exclusively at three months in Ireland. Lack of support was also given as the biggest factor in giving up breastfeeding early.

First a brief recap on the law relating to breastfeeding when you return to work. The Maternity Protection (Amendment) Act 2004 provides women with paid breastfeeding breaks.

Section 9 of the 2004 Act spells out these rights. This section provides that an employee who is breastfeeding her child is entitled without loss of pay at the option of her employer to either: a) time off from work for the purpose of breastfeeding in the workplace where facilities for breastfeeding are provided there by her employer or, b) a reduction of her working hours. This legislation also applies to mums expressing breast milk.

The 2004 regulations provide for a minimum entitlement of one hour a day for paid breastfeeding breaks. This paid break can be split up into one 60 minute break, two 30 minute breaks or three 20 minute breaks. If the breastfeeding facilities aren't up to scratch then you have the option of reduced hours without loss of pay to provide for breastfeeding off site. If you want to breastfeed at work you have to notify your employer in writing at least four weeks before you intend to return to work.

This is a progressive piece of legislation but it only covers employees who are breastfeeding within six months (26 weeks) of giving birth. This is proving a problem for women returning to the workforce. This is despite the fact that the Department of Health said, back in 2005, that this provision was inadequate.

There were also commitments in their breastfeeding strategy to support breastfeeding mothers for up to two years.

The unions have campaigned for a change to the six-month provision. It is worth checking if your client has a union/management agreement in work. There may be an arrangement in place to allow for breastfeeding longer than the statutory time limit. The Irish Congress of Trade Unions (ICTU) state that any union-negotiated workplace policy should apply for one year after giving birth.

ICTU also wants the six months breastfeeding limit changed in law to at least one year. They examined provisions in 90 other countries and discovered that breastfeeding breaks until the child reaches one year of age was the norm.

There has to be recognition of the fact that six months is generally the time when women return to work from maternity leave so it neutralises the provision supporting breastfeeding at work. It needs to be expanded.

Mary Kirwan BL is a barrister and welcomes your queries to

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