The Court of Justice of the European Union (CJEU) in
Otero Ramos v Servicio Galego de Saude has ruled that employers must undertake an individual risk assessment for all breastfeeding mothers returning to work.
This is contrary to UK law, which, as currently drafted, only compels an employer to undertake a specific risk assessment if the mother is working in a situation which it has already decided “could” involve a risk to her or to her baby.
Employers who follow this advice will therefore need to change their approach to avoid direct discrimination claims. The Pregnant Workers Directive requires employers to take steps to protect the health and safety of women who have recently given birth or who are breastfeeding. It states that employers must conduct a risk assessment for all activities that involve a specific risk of exposure to biological and chemical agents, extremes of cold and heat, and the following general hazards:
Mental and physical fatigue and working long hours
Working at heights or alone
Standing and sitting activities
Lack of rest and other welfare facilities
Risk of infection or kidney disease as a result of inadequate hygiene facilities
Hazards as a result of inappropriate nutrition
Hazard due to unsuitable or absent facilities.
The CJEU said that employers must conduct a risk assessment to identify any hazards to pregnant or breastfeeding mothers based on the work they actually do and their individual circumstances. This suggests that employers should undertake an assessment as a matter of course.
UK health and safety legislation
The UK’s Management of Health and Safety at Work Regulations 1999 are at odds with this decision and will need to be changed. These state that employers only have to undertake a specific risk assessment for a breastfeeding mother if she is working in a situation that could involve a risk to her or to her baby. This means that if you don’t identify a risk, you don’t have to conduct a separate risk assessment.
Facts of case
Ms Ramos was employed as a nurse in an A&E unit of a Spanish hospital. She notified her employer that she was breastfeeding and asked for her working conditions to be adjusted and for preventative measures to be put in place to protect her and her baby. Ms Ramos’s manager turned down her request because her role was “risk free.” They also turned down her request for a specific risk assessment. She subsequently obtained a letter signed by the senior consultant stating that the work of a nurse posed physical, chemical, biological and psychosocial risks to a breastfeeding mother and her child.
The CJEU held that the hospital had directly discriminated against Ms Ramos. It should have assessed the risk to Ms Ramos personally rather than relying on the general risk assessment that it had agreed with workers’ representatives. This is because pregnancy and breastfeeding is not a static condition and the same working conditions may raise different health and safety issues for different women at different times.
Implications for UK employers
Although the Equality Act does suggest that treating women less favourably because they are breast feeding may not amount to direct sex discrimination, employers should be wary about relying on this. Workers employed by public authorities can directly enforce EU law. In addition, UK tribunals are required, where possible, to interpret UK law in a way that is compatible with CJEU decisions.
We therefore recommend that employers:
Conduct risk assessments for all pregnant and breastfeeding workers
Take each worker’s specific personal situation into account and any medical advice that they have received
Regularly review the risk assessments to make sure they are still appropriate.
The European Commission's guidelines to help determine this available here:
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