Failing to carry out an appropriate risk assessment for a breastfeeding employee can be sex discrimination
In the recent case of Otero Ramos v Servicio Galego de Saude, the European Court of Justice (CJEU) had to decide whether a defective risk assessment carried out for a breastfeeding employee can give rise to an inference of sex discrimination.
This case originated in the Spanish Courts and concerned EC law relating to workers who are pregnant or breastfeeding which all member states are required to implement into national law.
Under European Directive 92/85, workers who are pregnant or breastfeeding must be given special protection as they are classed as a specific risk group. As such, where work activities may pose a specific risk to such workers of exposure to dangerous agents, processes or working conditions, a risk assessment must be carried out and, if there is a risk to the safety or health of the worker, provision must be made for the worker to be protected.
Under the Equal Treatment Directive, it is unlawful direct discrimination to treat a woman less favourably because of pregnancy or maternity leave.
In Spain, the law implemented to give effect to EU Directive 92/85 provides that if a risk assessment reveals a risk to safety or health in relation to pregnancy or breastfeeding, an employer has to adopt necessary measures to avoid the exposure to that risk by adjusting the working conditions and working hours of the employee. However, if the adjustment is not possible to avoid the risk and a medical certificate to that effect is issued by the INSS (Spain’s management body for Social Security), the worker will have to perform a different job or role or will have to be suspended from work until it is safe for her to return to her job.
Ms Otero Ramos was employed as a nurse working in the accident and emergency unit of a University Hospital. In March 2012, Ms Otero Ramos told her employer that she was breastfeeding and that some of her work tasks were liable to have an adverse effect on her milk and expose her to health and safety risks. She lodged a request for her working conditions to be adjusted and for preventative measures to be put in place.
The hospital however issued a report stating that Ms Otero Ramos’s work did not pose any risk to breastfeeding her child and rejected her request. Ms Otero Ramos then asked the INSS for a medical certificate stating that there was a risk to the breastfeeding of her child. The INSS considered a statement provided by the Hospital which said her job was a “risk-free job” and a report of doctor who had examined Ms Otero Ramos and decided to reject her request.
Ms Otero Ramos challenged that decision in the Spanish Courts and alleged that the risk assessment did not comply with the requirements of the EU Directive (see above) covering measures to improve health and safety for pregnant and breastfeeding workers, and therefore that her employer had discriminated against her in breach of the Equal Treatment Directive. In support of her claim, she submitted a letter signed by her line manager, a senior consultant of the University Hospital, stating that the work of a nurse in the accident and emergency unit posed physical, chemical, biological and psychosocial risks to a breastfeeding worker and to her child.
The Court dismissed her claim stating that it had not been shown that Ms Otero Ramos’s work posed the alleged risks. Ms Otero Ramos appealed against that decision and the appeal court referred the matter to the European Court of Justice for guidance.
The European Court of Justice held that failure to assess the risk posed by the work of a breastfeeding worker is to be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and constitutes direct discrimination on grounds of sex.
The Court noted that the burden of proof was on Ms Otero Ramos to establish facts or evidence from which it may be presumed that there has been discrimination. It went on to hold that if a breastfeeding worker can show that a risk assessment of her work has been defective, this can give rise to a presumption of direct discrimination on the grounds of sex. It is then for the employer to prove that the risk assessment has been conducted in accordance with the EU directive (see above) and that there had therefore been no discrimination.
Points to note
This case demonstrates how failure to carry out a proper risk assessment or to carry out one at all in relation to a breastfeeding employee may constitute unlawful sex discrimination.
Like Spain, the UK has implemented legislation to give effect to the Directives discussed in this case.
As well as carrying out a general risk assessment for your employees to assess all health and safety risks they are exposed to while at work, employers should carry out a specific risk assessment of risks to new and expectant mothers arising from ‘any processes, working conditions, physical, biological or chemical agents’. If the risk assessment reveals a risk, you must do all that is reasonable to remove it or prevent exposure to it. If this is not possible, you must offer the employee suitable alternative work (at the same rate of pay) or if that is not possible, suspend her from work on paid leave for as long as necessary to protect her health and safety, and that of her child.
Action to Take
- If you have an employee returning to work who is breastfeeding you must undertake a health and safety risk assessment.
- If you assess that the employee’s work does not pose a risk to the breastfeeding employee, make sure you record your reasons in writing, in case you are asked to substantiate these later on.
- It is important that the risk assessment is regularly reviewed to ensure it is up to date.
This article was written and researched by Miranda Amos, Solicitor at our Salisbury office
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