November 30, 2017

Employers Must Conduct Individualised Risk Assessments for Breastfeeding Mothers

In Otero Ramos v Servicio Galego de Saude (C-531/15), the European Court of Justice (ECJ) considered the obligation of employers towards breastfeeding mothers.

Ms Otero Ramos was a breastfeeding mother employed as an Accident & Emergency nurse by a hospital in Spain. She raised concerns with her employer regarding the possible adverse impact of certain of her working conditions on her lactation. She requested adjustments to her work pattern and for preventative measures to be put in place, both of which were declined. Her employer issued a report stating that the role did not pose any risk to her or her child’s health, but no explanation or methodology was offered as to how this conclusion was reached. As a result, Ms Ramos was refused financial assistance available under Spanish law for breastfeeding mothers deemed at risk. She challenged this decision in the Spanish courts by relying on a letter from her line manager confirming that her work posed physical, chemical, biological and psychological risks to breastfeeding. Her claim was dismissed by the Spanish courts and referred to the ECJ.

The ECJ held that a generic assessment in these circumstances is insufficient: employers must assess a breastfeeding worker’s individual circumstances to determine whether the mother or child’s health is at risk and failure to do so could constitute less favourable treatment of the worker and direct sex discrimination. As a judgment of the ECJ, this is binding on the U.K. courts and calls into question an exception under U.K. discrimination law which purports to prevent women from bringing a claim for direct sex discrimination where she has suffered a detriment because she breastfed at work.

This case is a reminder that employers must carry out individualised risk assessments for workers who are breastfeeding.

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