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Case law: Employers should carry out individual risk assessment for each pregnant and breastfeeding worker

Employers should consider carrying out individual risk assessments for pregnant and breastfeeding mothers (taking into account any available medical opinions) and review them over time to ensure they are still relevant, following a recent ruling.

September 2018

This update was published in Legal Alert - September 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A nurse in a Spanish hospital asked her employer to adjust her working conditions and put in place preventative measures to safeguard her and her child, as she was breastfeeding.

Under EU law, employers must conduct a risk assessment for certain activities in the workplace, to safeguard the health and safety of mothers who have recently given birth or are breastfeeding. The activities are:

  • Those involving a specific risk of exposure to:
    • Biological and chemical agents
    • Extreme cold or heat
    • Mental and physical fatigue and long working hours
  • Postural problems
  • Working at heights
  • Working alone
  • Occupational stress
  • Standing and sitting activities
  • Lack of rest and other welfare facilities
  • Inadequate hygiene facilities creating a risk of infection or kidney disease
  • Hazards arising from inappropriate nutrition
  • Hazards from unsuitable or absent facilities

In this case, the nurse's employer refused her request and did not even carry out a risk assessment. It said, relying on a general risk assessment agreed with workers' representatives, that her job was 'risk-free'. However, a senior consultant provided her with a letter saying a nurse's job carried physical, chemical, biological and psychosocial risks to a breastfeeding mother and her child.

The Court of Justice of the European Union (CJEU) ruled that her employer had directly discriminated against her because it had relied on the general risk assessment rather than assessing the risk to her personally.

It said the employer should have carried out an individual risk assessment for her. Pregnancy and breastfeeding are not static conditions, so the same job might create different health and safety issues for each woman at different times.

However, under UK law (which is required to follow EU law) employers only have to carry out an individual risk assessment for a pregnant or breastfeeding mother if their job could involve a risk to her or to the baby. If no risk has been identified, no assessment is required. It therefore contravenes the CJEU's interpretation of the relevant EU law and will need to be changed.

Operative date

  • Now

Recommendation

  • Employers should consider carrying out individual risk assessments for pregnant women and breastfeeding mothers (taking into account any available medical opinions) and review them over time to make sure they are still relevant, or risk indirect discrimination claims

Case ref: Otero Ramos v Servicio Galego de Saude Case C-531/15

Please note: An article published in the December 2017 edition of Legal Alert covered this case at an earlier stage in the legal process.

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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