Employers in any industry should remain aware of the health and safety requirements imposed on them in respect of pregnant employees and even in respect of some mothers returning from a period of maternity leave. Arguably one of the most important is the requirement to carry out risk assessments.
Recent case law had demonstrated that an employer’s failure to conduct an appropriate risk assessment for a breastfeeding employee could amount to sex discrimination.
Otero Ramos v Servicio Galego de Saude
Ms Ramos was a nurse working in the A&E Department of a Spanish hospital when she approached her employer to raise concerns that her current working pattern was having an adverse impact on her ability to breastfeed. Ms Ramos claimed that the complex shift pattern and her potential exposure to ionising radiation, healthcare-associated infections, and stress were affecting her ability to lactate.
The Spanish Hospital, upon conducting a risk assessment, concluded that her role did not pose any risk to her breastfeeding her child. The risk assessment did not provide any substantial explanation of the employer’s findings.
Ms Ramos then claimed sex discrimination.
The Court of Justice of the European Union’s (CJEU) Decision
The CJEU held that if a breastfeeding mother can show the risk assessment conducted by her employer was either not done or was inadequate, this could give rise to a claim of sex discrimination. However, the employer will, of course, have the opportunity to demonstrate that there had been no discrimination and that the required risk assessments had been conducted.
Ongoing Duty to Carry out Risk Assessments
Most employers are typically aware that they have a duty to conduct a risk assessment when they are informed of a worker’s pregnancy; however many employers do not realise that this is an ongoing duty that must continue upon the mother’s return to work, including giving consideration to whether that mother is breastfeeding.
Workplace risk assessments should already consider any risks to female employees of childbearing age and, in particular, risks to new and expectant mothers (for example, from working conditions, or the use of physical, chemical or biological agents). Identified risks must be managed as part of the general workplace risk assessment.
If notified that an employee is pregnant, breastfeeding or has given birth within the last six months, employers should check workplace risk assessments to see if any new risks have arisen. If risks are identified during the pregnancy, in the first six months after birth or while the employee is still breastfeeding, employers must take appropriate, sensible action to reduce, remove or control them.
If an employer identifies any risks during the assessment they must attempt to remove those risks and put protective measures in place. These measures could include reducing working hours, agreeing more frequent rest breaks or excluding heavy lifting and standing for long periods of time from the worker’s job role. If, following these measures, the worker is still subject to risks, employers should consider offering the worker a suitable alternative job or suspending them with pay.
While it is a legal obligation for employers to regularly review general workplace risks, there is no legal requirement to conduct a separate risk assessment for new and expectant mothers. However, employers who choose to do so may be in a better position to decide if any additional action needs to be taken.
Consequences for Employers
As a result of this decision, employers need to be aware that it will not be sufficient to carry out a risk assessment for a particular role, but it must assess the risks in respect of that particular worker, taking into account their specific circumstances. Employers shall also bear in mind that the potential risks identified for a pregnant worker and one who is breastfeeding may be very different, and change over time.
