The European Court of Justice (ECJ) has found that an employer’s failure to conduct an appropriate risk assessment for a breastfeeding employee amounts to direct sex discrimination.

Otero Ramos v Servicio Galego de Saude, ECJ

Facts

Ms Ramos is a nurse working in the accident and emergency department of a Spanish hospital. She raised concerns that her working conditions could have an adverse impact on her lactation, in particular the risks associated with working under a complex shift system and her potential exposure to harmful substances and infection.

Her request for an adjustment to her working conditions, and for protective measures to be put in place was rejected by the hospital on the grounds that her role did not pose any risk to breastfeeding her baby. Her job was included in a list of risk-free jobs previously drawn up by the hospital after consultation with workers’ representatives. An occupational health physician had examined and declared Ms Ramos fit to carry out the tasks relating to her work.

Her claim to the Spanish social court was rejected. On appeal from the decision, the High Court made a reference to the ECJ.  

ECJ decision

The ECJ held that a failure to assess the risks posed to a breastfeeding worker, in accordance with the requirements of the Pregnant Workers Directive, must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave. It also constitutes direct sex discrimination under the Equal Treatment Directive. The relevant guidelines (on conducting a risk assessment) require an examination of the specific circumstances of an individual breastfeeding mother’s working conditions. The conclusion reached by the hospital that Ms Samos was not at risk was not supported in the documentation.

Consequences

This case provides a reminder of employers’ obligations towards breastfeeding mothers, when their role could pose a potential risk to them or their child. It is important to bear in mind that an employer’s duty towards expectant mothers is ongoing, and must consider any potential risks once she has returned to work if she continues to breastfeed. It is not sufficient to carry out a risk assessment in respect of a particular role; it must assess the potential risks in respect of an individual worker.

Useful guidance on conducting risk assessments for breastfeeding mothers is available from the HSE website.

The content of this article is for general information only. For further information regarding employment law, please contact Liz Stevens or a member of Birketts’ Employment Law Team.

This article is from the November 2017 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at November 2017.

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