Failure To Consider The Breastfeeding Worker
The Law Of…Discriminating Against Breastfeeding Workers
In the recent Spanish case Ramos v Servicio Galego de Saude, the European Court of Justice (ECJ) determined whether or not the employer's failure to carry out a workplace assessment for a breastfeeding mother could be considered direct sex discrimination.
Employment Law Solicitor, Deana Bates, explains the case and what the outcome could mean for breastfeeding mothers in the UK.
What Brought The Claim About?
In this case, Ms Ramos worked as a nurse in the accident and emergency (A&E) department of a Spanish hospital. When her baby was four months old she notified her employer that she was currently breastfeeding her child and that working conditions may affect her ability to produce milk.
Her main concern was the stressful and complex shift system which she worked under. She was also worried about the potential exposure to ionising radiation as well as the risk of infection which accompanies working in healthcare. Ms Ramos filed a request that her working conditions be altered.
Why Was Her Request Denied?
The request was rejected by the hospital who stated that her role did not pose a risk to her ability to breastfeed her child.
Ms Ramos proceeded to apply a for financial assistance grant available to Spanish breastfeeding mothers at work where they are deemed to be at risk.
The application for financial assistance was rejected, citing that:
- The director of human resources at the hospital where Ms Ramos works stated that their hospital was on the list of risk-free jobs drawn up after consultation with workers' representatives.
- A doctor from the preventative medicine department had signed off Ms Ramos as fit for work.
With support from her line manager, Ms Ramos was able to challenge this decision, taking it to Spanish Social Court. Her line manager, a senior consultant in the A&E department, explained that their service area posed "physical, chemical, biological and psychosocial risk to a breastfeeding worker and her child".
Ms Ramos' application was dismissed by the Spanish Social Court. She subsequently appealed to the High Court of Justice of Galicia, who referred it to the ECJ for clarification of the Equal Treatment Directive.
The Final Decision
The European Court of Justice decided that the failure to carry out the appropriate risk assessments in accordance with The Pregnant Workers Directive for Ms Ramos could be regarded as less favourable treatment of a woman relating to her pregnancy or maternity leave, which, under the Equal Treatment Directive, constitutes Sex Discrimination.
The ECJ pointed out that the breastfeeding mother's individual working arrangements must be reviewed when carrying out the risk assessment, and that the documentation provided by the hospital in this case did not contain clear evidence that the risk assessment had been completed thoroughly.
The letter from Ms Ramos' line manager was also taken as sufficient evidence that a risk assessment had not been properly completed by the hospital.
What Protection Does European Law Offer To Breastfeeding Mothers?
The Pregnant Workers Directive states employers must take measures to protect the health of workers who are pregnant or breastfeeding. Risk assessments should be carried out by employers to ensure the appropriate criteria is met for new mothers returning to work and that she and or her breastfed child are not at risk.
Under the Spanish General Law on Social Security, a breastfeeding worker who is unable to complete her duties due to risk in the workplace is entitled to financial assistance until the child is of appropriate age. This is usually nine months, but can be earlier.
What Is the UK Stance On This?
The Management of Health and Safety at Work Regulations 1999, specifically section 16, cites sections 3-5 of the Pregnant Workers Directive as valid under UK law. The same expectations are required of UK employers to carry out appropriate risk assessments and safety checks.
"It is imperative that employers are aware that they have a duty of care towards employees in relation to assessing general workplace risks and to do what is reasonably practicable to control any risks highlighted by their assessment. Before making any decisions which may act as an obstacle to breastfeeding mothers, employers should seek legal advice. Whilst the law is relatively vague on breastfeeding and returning to work, employees should remember that their employer should not ignore health and safety risks which could pose a risk to them or their child. This case highlights that employers should look at the circumstances in hand, rather than trying to take a blanket approach in such circumstances. "
How Simpson Millar Can Help
If you have been discriminated against at work, based on your gender, age, maternity, or any other protected characteristic, then it's important to contact a specialist to assist you with your claim. Alternatively, if you are an employer in the dark about how to respond to a request for flexible working due to breastfeeding, please contact our team for advice. At Simpson Millar, our employment solicitors can aid you in getting the compensation you deserve. Freephone today, or get in touch through our online enquiry form.