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Tuesday, 28 November 2017
Failing to conduct an appropriate risk assessment for a breastfeeding employee was deemed sex discrimination. That was the ruling of the European Court of Justice in a recent case in which a breastfeeding mother - a working nurse in a Spanish hospital's accident and emergency unit - claimed that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC covering measures to improve health and safety for pregnant and breastfeeding workers. This changes the approach employers should take. Before the decision to commission a risk assessment in this situation was only deemed 'good practice' by ACAS.
Her employer's risk assessment, argued the Claimant, had concluded without a substantial explanation that her work was "risk free", so her request for an adjustment in her working pattern on account of breastfeeding had been declined.
The Claimant, Ms Otero Ramos, alleged that her employer was in breach of the Equal Treatment Directive.In reaching its decision, the CJEU held that if a breastfeeding mother could show that a risk assessment was defective or not done, it gave rise to a prima facie case of discrimination.
Ms Otero had informed her employer that she was feeding her child on breast milk and that the tasks required by her work were liable to have an adverse effect on that milk and expose her to health and safety risks,due to a complex shift rotation system, ionising radiation, health-care associated infections and stress.
The Court, referring to Article 118a(TEC), provided that "some types of activities may pose a specific risk,for pregnant workers, workers who have recently given birth or workers who are breastfeeding, of exposure to dangerous agents, processes or working conditions, such risks must be assessed and the result of such assessment communicated to female workers and/or their representatives".
In England and Wales, employers should be aware that there is already some protection in place, as the right to breastfeed in public is covered by The Equality Act 2010 which states, 'A business cannot discriminate against mothers who are breastfeeding a child of any age.' Furthermore, Rhe Workplace (Health, Safety and Welfare) Regulations 1992 requires an employer to provide somewhere for a breastfeeding employee to rest and this includes being able to lie down.
(European case: 'CJEU : Otero Ramos v Servicio Galego de Saude')