Employment Law Cases

Ramos v Servicio Galego de Saude

Generic risk assessments of jobs where breastfeeding workers are involved are incompatible with EU law as each worker’s personal circumstances must be considered. A failure to conduct an appropriate risk assessment gives rise to a prima facie case of discrimination.

Employers in the UK are required by law to protect the health and safety of their employees. There are special duties that apply in respect of new or expectant mothers in the workplace - employers must assess the potential workplace risks to the health and safety of pregnant or breastfeeding employees or their babies.

Ms Ramos, an A&E nurse, told her Spanish employer she was breastfeeding and that the demands of her job (complex shift patterns, possible exposure to ionising radiation and associated healthcare infections) exposed her to health and safety risks. She asked for her working conditions to be adjusted and for protective measures to be put in place. Her employer refused because her job was included in a generic list of risk-free jobs drawn up after consulting workers’ representatives. Ms Ramos challenged this, arguing that her job did pose a risk and she had a supporting letter from her line manager who was a senior consultant.

The case reached the ECJ which held that where a risk assessment is carried out there must be an examination of the individual situation of the worker to establish whether the health and safety of her and her child is at risk. Failure to conduct such a risk assessment must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and constitutes direct discrimination on grounds of sex.

Link to judgment: http://www.bailii.org/eu/cases/EUECJ/2017/C53115.html

Comment

This is a useful reminder, should employers need it, of the scope of their obligations in this area. It’s not the role that needs risk assessing but the risks for the particular worker.

Remember also that the same working conditions may raise different health and safety issues for different women at various stages of pregnancy, and similarly on returning to work after childbirth or whilst breastfeeding, i.e. your duty is an on-going one. Some of these issues are predictable and apply generally; others will depend on individual circumstances and personal medical history.

For those unsure of what’s required, the HSE publishes some practical and straightforward advice on its website.