Risk assessment

The Court of Justice of the European Union (CJEU) has held in the case of Eida Otero Ramos v Servicio Galego de Saude and anor that employers must carry out a specific risk assessment for workers who are breastfeeding. If they fail to do so, they will be guilty of direct sex discrimination.

Basic facts

Ms Otero Ramos, a nurse in the accident and emergency unit of a Spanish public hospital, returned to work after having a baby. She informed her employer that she was breastfeeding and that her work was liable to have an adverse effect on her milk and expose her to health and safety risks arising from a complex shift system, ionising radiation, healthcare associated infections and stress. However, the hospital rejected her request on the basis that it had issued a report stating that her work did not pose any risk to breastfeeding and there was no need to put any preventative measures in place. 

She then requested a medical certificate to claim a grant for a financial allowance from the National Institute of Social Security stating that there was a risk to the breastfeeding of her child. This request was refused, based on documentation supplied by her employer. This showed that her job had been included in a list of risk-free jobs drawn up by the hospital after consultation with worker representatives. It also took account of a report from a doctor who confirmed that Ms Otero Ramos had been examined and declared fit to carry out the tasks relating to her work. 

Decisions of lower courts 

Ms Otero Ramos appealed that decision in the local Social Court on the ground that her work posed a risk to her breastfeeding child. In support she relied on a letter from her line manager, the senior consultant in the unit, which stated that the work of a nurse in A&E posed physical, chemical, biological and psychosocial risks to a breastfeeding worker and to her child. The court rejected her claim. 

She appealed to the High Court on the basis that her employer’s failure to carry out an adequate risk assessment was in breach of article 4(1) of the European Directive to improve the safety and health at work of pregnant and breastfeeding workers and had also breached the Equal Treatment Directive. The High Court referred her claim to the CJEU.

Decision of CJEU

The CJEU agreed with her, holding that a general assessment of a worker’s role does not meet the requirement to carry out a risk assessment under Article 4(1). In particular, where the job poses a potential risk to a breastfeeding mother Article 4(1) requires the risk assessment must include “a specific assessment taking into account the individual situation of the worker in question in order to ascertain whether her health and safety or that of her child is exposed to a risk.” 

The Court also held that, where an employer breaches their obligation to carry out a risk assessment in accordance with Article 4(1), this amounts to direct discrimination on the ground that the failure amounts to less favourable treatment of a breastfeeding woman. 

As such, the rules on the burden of proof apply so that a worker is required to provide evidence showing that the risk assessment was not conducted in accordance with Article 4(1) and that she had therefore been discriminated against. In this case, the letter by Ms Otero Ramos’s line manager could constitute evidence capable of showing that no specific risk assessment had been carried out and that the burden of proof passed to the employer to prove that the risk assessment was, in fact, carried out to the required standard.  

This was for the national court to determine bearing in mind the documents relied on by the employer such as the certificate which classed the work as “risk free” and that she was fit to work. However, the Court indicated that as there was no explanation as to how they had reached their conclusions such evidence was not enough on its own to satisfy the burden of proof.