Failure to conduct risk assessment for breastfeeding mother

02 November 2017

The Court of Justice of the European Union (CJEU) has held that failure to conduct an appropriate risk assessment for a breastfeeding employee is sex discrimination.

In the case of Otero Ramos v Servicio Galego de Saude the claimant was a nurse working in a hospital's accident and emergency unit. She claimed sex discrimination as her employer's risk assessment for her as a breastfeeding worker had concluded, without a substantiated explanation, that her work was 'risk-free', so her request for an adjustment in her working pattern on account of breastfeeding was declined.

The claimant alleged 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, and so breached the Equal Treatment Directive.

The CJEU held that if a breastfeeding mother can show that a risk assessment was defective or not done, it gives rise to a prima facie case of discrimination. It would always be open to an employer to show that, in fact, the required risk assessment had been done in line with the relevant directive.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.