Failing to conduct appropriate risk assessment for breastfeeding mothers is sex discrimination

Speedread

When assessing health and safety risks for a breastfeeding mother, the employer must assess the risks for the particular employee.  A generic risk assessment for her role is insufficient to meet the employer’s legal obligations.  Failing to carry out a risk assessment properly is less favourable treatment related to pregnancy or maternity leave and constitutes direct sex discrimination.

Facts 

In Ramos v Servicio Galego de Saude, Ms Ramos worked as an accident and emergency nurse.  She informed her employer that she was breastfeeding and that she considered that her work was likely to expose her to health and safety risks, due to the complex shift rotation system, ionising radiation, healthcare associated infections and stress.  She asked her employer to adjust her working conditions and to put preventative measures in place but her employer refused, stating that her work did not pose any risk to breastfeeding mothers.  

She then applied for a state benefit available to breastfeeding mothers deemed to be at risk.  Her application was rejected on the basis that her role had been included in the list of risk-free jobs drawn up by her employer and that a doctor in the department of preventative medicine and occupational risks had examined her and declared her fit to carry out her work.  

She challenged that decision in the Spanish courts, arguing that her employer had not conducted the risk assessment in accordance with the requirements of the Pregnant Workers Directive.  She was support by her line manager, the senior accident and emergency consultant, who stated that her work exposed her to a physical, chemical, biological and psychosocial risk. 

The Spanish courts referred a number of questions to the European Court of Justice (ECJ).   

Judgment

The ECJ considered that a risk assessment of the work of a breastfeeding mother must include a specific assessment of her individual situation, in order to ascertain whether her health or safety or that of her child is exposed to risk.  Failure to carry out an appropriate risk assessment is less favourable treatment related to pregnancy or maternity leave and constitutes direct sex discrimination.  

Implications   

Employers who only carry out a generic assessment of the risks associated with a particular role for breastfeeding mothers will not have done enough to comply with their legal obligations and could face claims of sex discrimination.  As soon as an employee informs their employer that she is breastfeeding they must assess the risks for that particular employee and her baby.