Fri 05 Jan 2018

Failing to carry out risk assessment for breastfeeding employee may be discriminatory

A recent decision of the ECJ suggests that UK protection for breastfeeding mothers is out of step with the EU.

In the UK employers must assess risks to all employees, which obviously would include those who are breastfeeding, and the Workplace (Health, Safety and Welfare) Regulations 1992 require suitable facilities for breastfeeding mothers to rest to be provided along with adequate rest and meal breaks. However, there is no requirement to provide facilities for breastfeeding itself.  Nor is there any statutory right to time off to breastfeed.  In addition, although section 13 of the Equality Act 2010 provides that for the purposes of direct discrimination, less favourable treatment includes treatment given because a female is breastfeeding, the provision is expressed not to apply to discrimination at work.  This means that a claim for less favourable treatment because of breastfeeding can only be brought as an indirect sex discrimination claim.

However, in the Spanish case of Ramos v Servicio de Saude the ECJ has found that a failure to consider the specific circumstances of a breastfeeding employee can amount to direct sex discrimination.  Both the Spanish and UK sex discrimination legislation stem from the Equal Treatment Directive, which includes less favourable treatment of women related to pregnancy or maternity leave within the meaning of the Pregnant Workers Directive.  In addition, the European Commission produced guidelines to assist employers in carrying out risk assessments which state that the risks to breastfeeding women and their babies must be reviewed regularly.

Ms Ramos worked as a nurse in A&E in a Spanish hospital.  She notified her employer that she was breastfeeding, that she was concerned about risks including exposure to radiation, healthcare associated infections and stress and that she would like protective measures to be put in place.  This request was refused by the hospital who issued a report saying the role did not pose a risk to breast feeding mothers.

Ms Ramos then applied for financial assistance available under Spanish law to breastfeeding mothers.  However, this was also refused on the basis that Ms Ramos was not at risk if she returned to her role.  She then challenged the decision in the Spanish social court.  Despite her line manager stating that working in the department posed a physical, chemical, biological and psychological risk to a breastfeeding worker and her child, the court dismissed the application.  When Ms Ramos appealed the High Court of Justice made a reference to the ECJ.

The issue referred to the ECJ related to the burden of proof in these cases but in the course of dealing with that matter the ECJ held that a failure to assess risks posed to breastfeeding workers must be regarded as less favourable treatment of women related to pregnancy or maternity leave and constitutes direct sex discrimination.  The Court also noted that the guidelines issued by the European Commission required an examination of the specific circumstances of an individual mother's working conditions. 

Employers need to be aware that it is not therefore enough to carry out a risk assessment related to a particular role - instead the risk assessment must be specific to the individual in that role.  It also seems likely that section 13(7) of the Equality Act, which prevents women bringing direct sex discrimination claims in relation to detriment because of breastfeeding at work, is incompatible with the Directives and future claims are likely to challenge this. 

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