Is a failure to conduct an appropriate risk assessment for a breastfeeding employee sex discrimination?
Yes, held the CJEU in Otero Ramos v Servicio Galego de Saude. The Claimant was a nurse working in a hospital's accident and emergency unit. She claimed sex discrimination as her employer's risk assessment for her as a breastfeeding worker had concluded, without a substantiated explanation, that her work was 'risk-free', so her request for an adjustment in her working pattern on account of breastfeeding was declined. She alleged that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC covering measures to improve health and safety for pregnant and breastfeeding workers, and so breached the Equal Treatment Directive.
The CJEU held that if a breastfeeding mother can show that a risk assessment was defective or not done, it gives rise to a prima facie case of discrimination. It would always be open to an employer to show that, in fact, the required risk assessment had been done in line with the relevant directive.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.