In the Spanish case Ramos v Servicio Galego de Saude, the ECJ has ruled that it is insufficient for an employer to carry out only a general risk assessment where a breastfeeding worker’s role poses a potential risk to the mother or child from exposure to certain listed agents, processes or working conditions (such as biological or chemical agents, extreme temperatures, shocks, noise etc). The assessment must involve an examination of the specific circumstances of the individual’s working conditions, not just an assessment in relation to the general role. The ECJ also held that a failure to carry out a proper risk assessment constitutes direct sex discrimination; this highlights the possibility of challenging the Equality Act provision excluding direct sex discrimination claims in relation to work-related breastfeeding claims as incompatible with EU law.
The case serves as a reminder that employers should carry out risk assessments not only when informed of a worker’s pregnancy but also when informed of their breastfeeding on return from maternity leave, and bear in mind that the potential risks may be different. The assessment must take into account the specific situation of the worker – generic, broad-brush assessments of roles are likely to be insufficient.
Acas has recently published new guidance on pregnancy and maternity discrimination, available here.
A Private Members’ Bill with government backing has been introduced to Parliament which proposes giving parents who lose a child under the age of 18 (including still births after 24 weeks’ pregnancy) two weeks’ bereavement leave, with a right to statutory pay (at the flat rate) for those with at least 26 weeks’ service. The Bill includes protection from detriment, redundancy and dismissal as a result of taking bereavement leave. The intention is for the Bill to be passed in 2018 and the right to be available to parents from 2020 (to allow HMRC and commercial payroll providers enough lead-in time to implement necessary administrative changes).