In the case of Ramos v Servicio Galego de Saude, the European Court of Justice has recently held that a failure by an employer to carry out an appropriate workplace risk assessment, based on the individual circumstances of a breastfeeding worker, was direct sex discrimination.
Ms Ramos is a nurse in the A&E department of a Spanish hospital. When her child was four months old, she notified her employer that she was breastfeeding and requested an adjustment to her working conditions as she believed such conditions (a complex shift system, exposure to ionising radiation, healthcare associated infections and stress) could have an adverse impact on her. The hospital rejected her request, issuing a report that stated that her role did not pose any risk to breastfeeding her child. Ms Ramos failed in her challenge to this decision in the Spanish courts. On appeal, a reference was made to the European Court of Justice (ECJ).
The ECJ held that a failure by an employer to carry out a risk assessment in compliance with the requirements of EU law constitutes direct sex discrimination. The ECJ noted that employers need to examine the specific circumstances of the breastfeeding mother’s working conditions, not just assess the risk for the particular role.
This case is a reminder that, where work is of a kind which could involve risk, employers need to assess those risks to new or expectant mothers or their babies and that a failure to do so can amount to discrimination. Employers frequently, as a matter of course, carry out a risk assessment for pregnant employees, but it is often forgotten when mothers return to work who are still breastfeeding. A further risk assessment should be carried out at this point as the risks may be different for pregnancy and breastfeeding.
This case also makes it clear that a general risk assessment on a particular role will not be sufficient. Employers must assess the risks in relation to the particular situation of the breastfeeding mother.