In Ramos v Servicio Galego de Saude, the European Court has held that an employer must carry out a specific assessment of the workplace risks to a breastfeeding worker if their role exposes them to certain potential hazards including exposure to shocks, vibration, movement, noise, ionising radiation, extremes of hot or cold, biological or chemical agents. A general assessment of the role will not be sufficient; the circumstances of the particular worker must be considered in the assessment. The Court also stated that a failure to complete such an assessment could constitute direct sex discrimination under European law. This contradicts the UK Equality Act exception which expressly states that a woman who has been less favourably treated at work – 4 – because she is breastfeeding cannot claim direct sex discrimination. Rather, she must bring an indirect discrimination claim, or rely on her rights under the Management of Health and Safety at Work Regulations.
Ms Ramos is an accident and emergency nurse in Spain. She notified her employer that she was breastfeeding and asked for her working conditions to be adjusted, as she believed her shift pattern and exposure to ionising radiation, infections and stress negatively impacted on her lactation. He employer refused to adjust her working conditions, pointing to a report which stated that her role did not pose a danger to her baby.
Ms Ramos applied for financial assistance available in Spain to breastfeeding mothers but was turned down on the basis that her employer stated her role was risk free and that she had been declared fit for her role by a doctor. With the support of her line manager and a hospital consultant, she challenged this decision in the Spanish Social Court. Her challenge was dismissed. On appeal to the Galician High Court of Justice, questions were referred to the European Court.
The Court made reference to European Commission guidelines on the assessment of risks to pregnant and breastfeeding mothers at work issued in November 2000. It noted that the guidelines require that an employer assesses the risks to a particular worker once she has notified the employer that she is breastfeeding. In Ms Ramos’ case, the hospital had relied on a generic assessment of the role of an A&E nurse, rather than considering the particular risks posed to her at the time she was breastfeeding. It also held that such an omission could constitute direct sex discrimination.
Employers should be aware of their duty to carry out a specific examination of the risks posed to a worker who has told them she is breastfeeding. This case makes clear that it will not be enough to refer to pre-existing risk assessments based on the role undertaken by the worker. If risks are identified, the employer must take steps to prevent them. If this is not possible, the breastfeeding worker should be moved to a different role or, where this is not feasible, allowed to take paid leave for the period of risk. It is interesting to note the Court’s ruling, which runs counter to the Equality Act. It remains to be seen whether a UK worker will try to bring a direct sex discrimination claim on this basis, and whether the UK Courts will rule on the compatibility of UK law with European law.