RISK ASSESSMENTS FOR BREASTFEEDING MOTHERS
Is failure to conduct an appropriate risk assessment for a breastfeeding employee sex discrimination?
In Ramos v Servicio Galego de Saude, the European Court of Justice (ECJ) held that a failure to conduct an appropriate risk assessment for a breastfeeding mother amounted to sex discrimination.
The Equal Treatment Directive prohibits discrimination on the grounds of sex as regards employment and working conditions. Discrimination under the directive includes less favourable treatment of women relating to pregnancy or maternity leave.
The Pregnant Workers Directive requires member states to take measures to protect the health and safety at work of pregnant or breastfeeding workers, and those who have recently given birth. A risk assessment should be carried out where a pregnant or breastfeeding worker is exposed to a potential risk. Where a risk is identified, the employer must adjust the working conditions or hours to avoid the risk, or if not practicable, the employer must move the worker to an alternative job. If a transfer is also not practicable, the worker is entitled to take leave for the duration of the relevant period in order to protect her health.
The European Commission produced guidelines to assist employers when carrying out a risk assessment. The guidelines state that when assessing the risk to breastfeeding women, employers need to regularly review the risks.
The Pregnant Workers Directive was transposed into Spanish and UK law.
Ms Ramos is a nurse working in A&E at a Spanish hospital. She raised concerns that her working conditions (a complex shift system, potential exposure to ionising radiation, healthcare associated with infections and stress) were having an adverse impact on her ability to breastfeed her child. She requested a change in her working condition, which was rejected by the hospital on the grounds that her role did not pose any risk to her breastfeeding her child.
The hospital had conducted a risk assessment for the role of an A&E nurse, but had not carried out an individual assessment of Ms Ramos’ circumstances. Ms Ramos claimed sex discrimination, alleging the risk assessment was not appropriate and did not meet the requirements as set out under EU law.
Ms Ramos failed in her challenge in the Spanish Courts and on appeal a reference was made to the European Court of Justice (the ECJ).
The ECJ noted that the guidelines require an examination of the specific circumstances of an individual breastfeeding mother’s working conditions, rather than a general assessment of the job role.
The ECJ held that a failure to assess the risk posed to a breastfeeding worker in accordance with the Pregnant Workers Directive was less favourable treatment of a woman related to pregnancy or maternity leave and constituted sex discrimination within the meaning of the Equal Treatment Directive.
The case is a reminder to employers that it will not be sufficient to carry out a general risk assessment for a particular role. Employers should assess the risk particular to new or expectant mothers or their babies and that failure to do so could amount to discrimination. Whilst employers typically carry out a risk assessment on a pregnant worker, the duty is ongoing and employers must consider the potential risks to the worker after she has returned from maternity leave and informs them that she is breastfeeding. Employers should remember that an assessment for a worker who is pregnant will not always have the same result for a worker who is breastfeeding.
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