The European Court of Justice has held that the failure to carry out a workplace risk assessment looking into a breastfeeding worker’s individual circumstances can amount to direct sex discrimination.
The employee, in this case, was a nurse working in an accident and emergency department. She notified her employer that she was breastfeeding when her child was four months old and that she believed her working conditions could have an adverse impact on her lactation. She was particularly concerned about the risks associated with working under a complex shift system and her potential exposure to ionising radiation, healthcare associated infections and stress at the hospital.
She requested that her working conditions be adjusted and protective measures be put in place. The hospital rejected her request, issuing a report that stated that her role did not pose any risk to breastfeeding her child.
She then applied for a financial assistance grant available under Spanish law to breastfeeding mothers deemed to be at risk. Her application was rejected on the basis that the director of human resources at the hospital had stated that her job had been included in the list of risk-free jobs drawn up by the hospital after consultation with workers’ representatives. Also a report of a doctor in the department of preventive medicine and occupational risks confirmed that she had been examined and declared fit to carry out the tasks relating to her work.
The employee challenged the decision before the Spanish social court, with support from her line manager, a senior consultant in the accident and emergency department. The consultant stated that working in the department posed a physical, chemical, biological and psychosocial risk to a breastfeeding worker and her child. The court dismissed the application.
On appeal to the High Court the Court referred the matter to the European Court of Justice.
The European Court of Justice held that a failure to assess the risk 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 within the meaning of that Directive and constitutes direct sex discrimination for the purpose of the Equal Treatment Directive.
It said that it was for the breastfeeding worker to present to the court facts or evidence capable of showing that the risk assessment of her work was not conducted in accordance with the Pregnant Workers Directive and that she has therefore been discriminated against. It would then be for the employer to prove that there has been no discrimination.
Workplace risk assessment must consider individual circumstances
The Court noted that guidelines require an examination of the specific circumstances of an individual breastfeeding mother’s working conditions. The documentation on which the hospital sought to rely in support of its conclusions in the risk assessment did not contain any substantiated explanation as to how the conclusion was reached. In those circumstances, the Court considered that the letter from the employee’s line manager substantiating her claims was evidence capable of showing that the risk assessment of her work did not take account of her individual situation and was therefore not carried out in accordance with the requirements of the Pregnant Workers Directive. However, it would be for the referring court, it said, after a consideration of all the evidence, to decide whether that was the case in relation to this particular workplace risk assessment.
Case reference: Ramos v Servicio Galego de Saude