The ECJ has ruled that conducting a general risk assessment of the health and safety risks to pregnant workers and new and breastfeeding mothers is not sufficient to comply with the Pregnant Workers Directive.

On top of this, the employer must conduct specific risk assessments for individual workers to identify any particular health and safety risks they may face.  These risks will change at different stages of pregnancy and motherhood and may be different for different women performing the same job.  A failure by an employer to conduct such a bespoke risk assessment may give rise to a direct sex discrimination claim (Ramos v Servicio Galego de Saude, ECJ).

Background law

The European Pregnant Workers Directive (PWD) includes measures aimed at improving the health and safety at work for workers who are pregnant, have recently given birth and/or who are breastfeeding. In the UK, these measures are implemented by various pieces of legislation including the Management of Health and Safety at Work Regulations 1999.

In a nutshell, these rules require the employer to conduct risk assessments in the following circumstances:

• A general workplace risk assessment – this is required where there are women of child-bearing age in the workforce and the work might place pregnant workers, new mothers or their babies at risk. The employer is required to take steps to eliminate any identified risks
• A specific risk assessment – this is required where the employer is notified that a worker is pregnant, has given birth within the previous 6 months or is breastfeeding. If the employer identifies any risks to the health and safety of the individual (or her baby) then, again, they must take steps to eliminate those risks. If the risks cannot be avoided (and there is no suitable alternative work available) then the employer must either: (i) alter the working conditions if this would remove the risk; or (ii) suspend the employee from work for as long as necessary to avoid the risk.

If an employer fails to comply with these duties, this may amount to discrimination on the grounds of sex.

This case concerned risks posed to a breastfeeding worker in Spain, where substantially similar rules apply.

Facts

The Claimant worked as a nurse in the A&E department of a Spanish hospital. She returned to work shortly after the birth of her child and whilst she was still breastfeeding. She told her employer that she was concerned about the effect her job role might have on her ability to breastfeed. In particular, she was worried about the complex shift system and her exposure to ionising radiation, infections and stress. She asked for adjustments to her role to protect her from these risks.

The hospital refused on the basis that they believed her role did not pose any risks to her ability to breastfeed. In accordance with Spanish law, they had previously consulted with workers' representatives and created a list of jobs that were agreed to be "risk free". These were jobs that workers in this situation should be transferred to if their job posed a risk to their health and safety (or that of their child). Because the Claimant already worked in a "risk free" job, the hospital rejected the request to adjust the role.

The Claimant then applied for a special financial assistance grant which was available to breastfeeding mothers who were deemed to be at risk in their jobs. The grant was paid to mothers who had been suspended from work due to the workplace risks. However, the Claimant's application was rejected following receipt of:

• a statement from the hospital's Director of HR which said that her job was on the list of "risk-free" jobs which had been agreed by the hospital and workers' representatives; and
• an occupational health report which said that the Claimant was fit to carry out her job role and there was no risk to breastfeeding.

Although the Claimant appealed, with support from her line manager, her application was ultimately dismissed by the Spanish social court. The Claimant appealed again to the Spanish High Court, which referred the issue to the ECJ.

Decision

In April 2017, Advocate General Sharpston gave an Opinion which concluded that conducting a broad brush generic risk assessment for the average worker was unlikely to satisfy the requirement to conduct a specific risk assessment for a pregnant worker or new or breastfeeding mother. Further, it was said that "less favourable treatment" under the Equal Treatment Directive would cover a failure to conduct a proper risk assessment for a breastfeeding mother. Such a failure could amount to direct sex discrimination.

The ECJ agreed with the Advocate General. The Guidelines on the PWD required an examination of the specific circumstances of an individual breastfeeding mother's working conditions. In other words, it wasn't enough for the employer to point to the generic role of a nurse working with A&E and say that it had been assessed and posed no risks to a breastfeeding mother. It could be the case that the same working conditions (that had been identified as risk free on a generic basis) raised different health and safety issues for different women at different stages of their pregnancy and/or on their return to work and/or whilst breastfeeding. This will depend on their individual circumstances and personal medical history.

The ECJ held that this could amount to direct sex discrimination. The Claimant had provided evidence that backed up her assertions that her particular role placed her at risk (i.e. her line manager's supporting letter). This suggested that the hospital had not carried out a risk assessment specific to the Claimant. Accordingly, the burden of proof had shifted to the hospital to prove that the risk assessment was sufficient.

Comment

This case highlights that a general assessment of risks to pregnant workers or new or breastfeeding mothers is not enough. Employers must go further and assess what particular risks, if any, are faced by a particular employee. Although specific risk assessments are typically triggered upon the notification of a pregnancy, the important lesson from this case is that this duty extends to breastfeeding mothers when different health and safety considerations will arise.

For example, when breastfeeding, a woman is exposed to an increased risk of mastitis if she is not afforded sufficient opportunities to express milk during working hours – this is not a risk a pregnant worker would face (although she may still require frequent breaks to avoid other types of risks). Indeed, the risk of mastitis was an issue raised in the recent Employment Tribunal case of Macfarlane and anor v easyjet Airline Company Ltd. You can read our report on that case here. In addition, there are some workplace risks which are associated specifically with breastfeeding. The HSE highlights that these include working with organic mercury or radioactive materials or exposure to lead.

Where does this leave employers? Firstly, it is important to ensure that your health and safety policies are appropriately drafted and clarify that specific risk assessments will be conducted for pregnant workers and new and breastfeeding mothers. Secondly, ensure that those specific risk assessments are actually carried out - both upon notification of pregnancy and on the return to work (and at appropriate intervals thereafter if they continue to breastfeed for some time).

Ramos v Servicio Galego de Saude