Failure to conduct proper risk assessment for breastfeeding mother can be direct sex discrimination

This was a decision of the Court of Justice of the European Union (CJEU) in the case of Elda Otero Ramos v Servicio Galego de Saude. Miss Ramos was a nurse in the accident and emergency unit of a university hospital. Miss Ramos sought a medical certificate stating that there was a risk to the breastfeeding of her child from the tasks required by her work.

When considering this request, the university hospital took into account that Miss Ramos’ work as a nurse in the accident and emergency unit had been included in the list of “risk free” jobs drawn up by the hospital after consultation with its worker’s representatives and the report of a doctor who had examined Miss Ramos and declared her “fit” to carry out the tasks relating to her work. On that basis Miss Ramos’ request was rejected. Miss Ramos challenged that decision and provided a letter signed by the senior consultant in the hospital’s accident and emergency unit stating that the work of a nurse in that unit posed physical, chemical, biological and psycho social risks to a breastfeeding worker and to her child.

The CJEU considered that for the purposes of interpreting Article 4 (1) of Directive 92/85, account must be taken of guidelines created pursuant to Article 3 (2) of the Directive to provide the basis for the assessment required by Article 4 (1). The guidelines indicate that the risk assessment of the work of a breastfeeding worker must include a specific assessment taking into account the individual situation of the worker in question in order to ascertain whether her health or safety or that of her child is exposed to a risk.

The Court also found that failure to assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of Article 4(1) of Directive 92/85 must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of that Directive and constitute direct discrimination on grounds of sex.

The Court found that the letter provided by Miss Ramos constituted evidence capable of showing that the risk assessment of her work did not include a specific assessment taking into account her individual situation and so, prima facie evidence that the assessment was not conducted in conformity with the requirements of Article 4(1) of the Directive 92/85. When the matter was referred back (to the High Court of Galicia) it would therefore be up to the defendant to prove that the risk assessment it had carried out had been in accordance with the Directive and there had been no breach of the principle of non-discrimination.

In the light of this decision, employers should ensure that when conducting risk assessments for pregnant or breastfeeding women, that they carry out any risk assessments in accordance with all relevant guidelines and record the evidence which substantiates their conclusions.

If you have any questions regarding this topic or any employment issue, please contact any member of the Edwin Coe Employment team.

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