Do employers have a duty to carry out an individual risk assessment for all breastfeeding mothers returning to work?
Yes – according to the Court of Justice of the European Union (CJEU) in Otero Ramos v Servicio Galego de Saude.
However, the ruling is contrary to UK law, which currently only compels an employer to undertake a specific risk assessment if the mother is working in a situation which it has already decided “could” involve a risk to her or to her baby.
What are the current rules?
The Pregnant Workers Directive requires employers to take steps to protect the health and safety of women who have recently given birth or who are breastfeeding. It states that employers must conduct a risk assessment for all activities that involve a specific risk of exposure to biological and chemical agents, extremes of cold and heat, and the following general hazards:
- Mental and physical fatigue and working long hours
- Postural problems
- Working at heights or alone
- Occupational stress
- Standing and sitting activities
- Lack of rest and other welfare facilities
- Risk of infection or kidney disease as a result of inadequate hygiene facilities
- Hazards as a result of inappropriate nutrition
- Hazard due to unsuitable or absent facilities.
UK health and safety legislation
The Court’s decision is also ad odds with the UK’s Management of Health and Safety at Work Regulations 1999. These state that employers only have to undertake a specific risk assessment for a breastfeeding mother if she is working in a situation that could involve a risk to her or to her baby. This means that if you don’t identify a risk, you don’t have to conduct a separate risk assessment.
The CJEU said that employers must conduct a risk assessment to identify any hazards to pregnant or breastfeeding mothers based on the work they actually do and their individual circumstances. This suggests that employers should undertake an assessment as a matter of course
Why did Ms Ramos bring a claim?
Ms Ramos was employed as a nurse in an A&E unit of a Spanish hospital. She notified her employer that she was breastfeeding and asked for her working conditions to be adjusted and for preventative measures to be put in place to protect her and her baby. Ms Ramos’s manager turned down her request because her role was “risk free.”
Her employer also turned down her request for a specific risk assessment.
The CJEU held that the hospital had directly discriminated against Ms Ramos and should have assessed the risk to her personally rather than relying on the general risk assessment that it had agreed with workers’ representatives.
Implications for UK employers
Although the Equality Act does suggest that treating women less favourably because they are breast feeding may not amount to direct sex discrimination, employers should be wary about relying on this.
Workers employed in the public sector can directly enforce EU law. In addition, UK tribunals are required, where possible, to interpret UK law in a way that is compatible with CJEU decisions.
What should employers do?
- Conduct risk assessments for all pregnant and breastfeeding workers
- Take each worker’s specific personal situation into account and any medical advice that they have received
- Regularly review the risk assessments to make sure they are still appropriate.