Opinion

Sex Discrimination and Breast Feeding Mothers

9th October 2017

The Court of Justice of the European Union (CJEU) has recently been faced with a case of sex discrimination arising from the refusal to conduct a specific and individual risk assessment. How will the decision affect the UK’s employers?

In Otero Ramos, Ms Ramos was employed as a nurse within an accident and emergency department of a Spanish hospital. Ms Ramos went on maternity leave and returned to work four months after giving birth. Upon her return from maternity leave, Ms Ramos requested some adjustments to her working conditions. The reason for the request was that Ms Ramos was breastfeeding and was concerned that due to the medical nature of her job, there was a risk of her breast milk becoming contaminated thereby endangering her own health and that of her child.

The hospital however, refused to make any adjustments. The key reason cited by the hospital was that Ms Ramos’ role was listed as being risk free. The hospital had previously drawn up a list of risk free jobs and consulted with workers’ representatives on the list. Following the hospital’s refusal to comply with the request, Ms Ramos made an application to the Spanish Social Security department for financial assistance on the basis that she could not work due to the risks to her ability to breastfeed. The social security grant was refusedand following this refusal, Ms Ramos was also unsuccessful in the Spanish High Court.

The matter then proceeded to the CJEU. The CJEU found in favour of Ms Ramos and commented that Article 4 of the Pregnant Workers Directive requires a specific and individual assessment to be undertaken in respect of an individual worker. Therefore, a failure to undertake a specific risk assessment in respect of a breastfeeding mother was held to have amounted to direct sex discrimination. The hospital sought to rely on a general risk assessment and failed to take into consideration the fact that Ms Ramos was breastfeeding and was therefore potentially susceptible to an increased level of risk. The CJEU also took into consideration a letter drafted by Ms Ramos’ manager (a senior hospital consultant) at the time of the social security grant application. The letter confirmed that as a result of Ms Ramos’ role, there would be a number of physical, chemical, biological and psychosocial risks to a breastfeeding mother and her child.

Employer Considerations

Otero Ramos serves as an important reminder to employers that may have expectant mothers or employees returning from maternity leave. Whilst many employers conduct risks assessments at the beginning of employment, there may be a need to conduct further risk assessments in respect of employees that have recently given birth. Quite clearly, employees returning from maternity leave may be exposed to a higher level of risks particularly in the medical setting. The key reminder to employers is to ensure that the individual and specific needs of pregnant employees are taken into consideration given that a failure to do so could result in a claim of direct sex discrimination. Otero Ramos is perhaps a reminder of an obvious scenario in which an employer ought to have gone further and implemented a specific risk assessment.

 

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