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Failure to Conduct Breastfeeding Risk Assessment Constitutes Employee Sex Discrimination, CJEU decides

Posted on November 6th 2017 by

In Ramos v Servicio Galego de Saúde the Court of Justice of the European Union (CJEU) held that a failure by an employer to conduct an appropriate risk assessment for a breastfeeding female worker constituted direct discrimination.

The case involved an A&E nurse, who went to her employer with concerns that her working conditions (ie. long hours, stress, exposure to ionising radiation etc.) were having an affect on her ability to breastfeed her child. The employee then requested a change to her working patterns to accommodate breastfeeding her child and for preventative measures to be put in place, this was rejected on the basis that the job posed no risk, as she was deemed to be in a “risk-free” job by her employer. The Claimant alleged the risk assessment was not appropriate and did not meet the requirements as set out in EU Law (namely EU Directive 92/85/EEC and Directive 2006/54/EC).

The CJEU established that the risk assessment carried out must involve examining the individual worker’s situation, in order to establish whether there is a risk to the worker or her child. It will not suffice to simply make a general assessment of the job role and issue a generic report. If an appropriate risk assessment is not conducted, this may constitute sex discrimination as it may mean women who are pregnant or breastfeeding are treated less favourably.

What does this mean for employers?

Employers must be aware that if they carry out a broad assessment of the workplace, jobs and the general state of health of the average pregnant worker, new mother or breastfeeding worker is unlikely to amount to a satisfactory risk assessment. Employers should also remember a risk assessment for a worker who is pregnant will not always have the same result for a worker who is breastfeeding, thus the obligation to conduct appropriate risk assessments is ongoing and should be conducted as an individual worker’s situation changes.

 

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