The recent case from the European Court of Justice, Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social, concerned a sex discrimination claim brought by a nurse who worked in the A&E department of a Spanish hospital. The nurse's employer had conducted a risk assessment for her as a breastfeeding worker, concluding that her work was "risk-free" but without giving any substantial explanation as to why this was the case.  The nurse raised concerns regarding certain aspects of her working conditions and the effects that these may have on her breastfeeding.  Her request to change her working pattern for her to continue breastfeeding was turned down.  She claimed that the risk assessment did not comply with European law, in particular the EU Directive prescribing measures to improve health and safety for pregnant and breastfeeding workers which requires employers to undertake a risk assessment.

The European Court decided that, where a breastfeeding mother can show that a risk assessment was defective or not done, the worker concerned is deprived of the protection they should receive under the Directive.  Accordingly, such failure must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and consequently constitutes direct discrimination on the grounds of sex.  It would then be for the employer to prove that the risk assessment had been conducted in accordance with the requirements of the Directive and that there had, therefore, been no discrimination.  Importantly, this includes an assessment of the specific risks arising from each worker’s particular role and working conditions.

Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social

PRACTICAL POINT
When an employee returns from maternity leave requesting an adjustment to hours or conditions because she wishes to breastfeed, there is a duty on the employer to conduct a risk assessment personal to her individual circumstances.  Failure to do so could result in claims for discrimination and unlawful detriment. This case indicates that this could include a claim for direct sex discrimination.  That would be in addition to claims she may have for pregnancy and maternity discrimination, indirect sex discrimination or unlawful detriment.