Failure to conduct risk assessment for breastfeeding employee may amount to sex discrimination

In the case of Otero Ramos v Servicio Galego de Saude, the Claimant was a nurse who worked in a hospital’s accident and emergency unit. She claimed sex discrimination because her employer’s risk assessment for her, as a breastfeeding worker, stated that her work was ‘risk-free’, so her request for an adjustment in her working pattern on account of breastfeeding was declined.

She alleged that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC which covered measures to improve health and safety for pregnant and breastfeeding workers, and so breached the Equal Treatment Directive.

It was held that if a breastfeeding mother can show that a risk assessment was defective or not done, it gives rise to a claim for discrimination. An employer could show that, in fact, the required risk assessment had been done in line with the relevant directive.

In light of this case, employers must ensure that they carry out a proper risk assessment for employees who are breastfeeding and consider any requests for a change in their working pattern reasonably. They must also ensure that they provide a substantial explanation for when concluding whether the work that the employee carries out is risk-free.

Should you have any queries about how to deal with employees who are pregnant or on maternity leave please contact our lawyers on 020 7903 6888.

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