In Otero Ramos v Servicia Gelgo de Saude the CJEU found that a failure to conduct an appropriate risk assessment for a breastfeeding employee was considered sex discrimination.
In this case the Claimant was a nurse employed in a hospital’s accident and emergency unit. Her employer had conducted a risk assessment for her as a breastfeeding employee and had concluded that her work was ‘risk-free’. The employer had not given any explanation to this conclusion and subsequently the employee’s request for an adjustment in her working pattern on account of breastfeeding was declined. The employee entered a claim for sex discrimination alleging that the risk assessment did not comply with the requirements of the EU Directive 92/85/EEC which covers ways in which health and safety can be improved for pregnant and breastfeeding workers. The risk assessment therefore breached the Equal Treatment Directive.
The CJEU held that if the breastfeeding employee is able to show that a risk assessment was defective or had not been completed the this would give rise to a prima facie case of discrimination. However, it is always open to the employer to prove that the risk assessment had actually been completed and done so in line with the relevant directive.
30th November 2017