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Failure to assess risks to breastfeeding employees is sex discrimination, Court of Justice rules

Employers that do not carry out an adequate risk assessment for breastfeeding workers could be discriminating on the grounds of sex, the European Court of Justice has ruled.

The European Court of Justice | Image credit: ©iStock/carterdayne

In the recent case of Otero Ramos v Servicio Galego de Saude, the claimant Elda Otero Ramos was a breastfeeding mother who worked as a nurse in the accident and emergency (A&E) unit of University Hospital Coruña in Spain.
 
In March 2012 she told her employer that she was breastfeeding and requested for her working conditions to be adjusted due to the adverse effects shift patterns, ionising radiation, healthcare-associated infections and stress could have on her milk.
 
The hospital said its risk assessment showed Otero Ramos’s work did not pose any risk to breastfeeding her child and refused her request. There was no explanation in the assessment on how it reached this conclusion.
 
She then asked for a medical certificate from the INSS (Institute for Social Security) stating that there were risks. After examining a statement from the hospital that said her work was “in the list of risk-free jobs” and a report of a doctor from the hospital’s preventive medicine and occupational risks department confirming she was “fit to carry out the tasks relating to her work”, the INSS rejected her request in May 2012.  
 
She challenged this decision and claimed that the hospital’s generic risk assessment did not comply with Art 4(1) of the EU Directive 92/85 and thus breached EU Directive 2006/54, known as the Equal Treatment Directive, which covers gender equality in the workplace.
 
To support her claim Otero Ramos supplied a letter signed by her line manager and senior consultant of the hospital’s A&E department, which said “the work of a nurse in that unit posed physical, chemical, biological and psychosocial risks to a breastfeeding worker and to her child”. 
 
However, her claim was dismissed by the court in October 2013. She appealed against the decision and the case was referred to the Court of Justice.
 
The court held that a breastfeeding worker could make a sex discrimination claim if there was evidence to show the employer’s risk assessment was insufficient as it might mean women who are breastfeeding were treated less favourably than other workers. It would then be for the defendant to prove the assessment does comply with the requirements of Directive 92/85.
 
It established that “the risk assessment of the work of a breastfeeding worker must include a specific assessment taking into account the individual situation of the worker in question to ascertain whether her health or safety or that of her child is exposed to a risk”. This includes exposure to substances such as lead, organic solvents, pesticides and antimitotics.

Keeley Downey is assistant editor of IOSH Magazine

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