03 November 2017
In Ramos v Servicio Galego de Saude the ECJ were asked to consider if an employer’s failure to assess the workplace risks to a breastfeeding worker could amount to direct sex discrimination.
Ms Ramos was an A&E nurse who was breastfeeding her child. She complained to her employer that her complex shift pattern, potential exposure to radiation and associated infections could cause a risk to her breast milk. Her employer issued a report stating that Ms Ramos’ work did not pose any risk to her breastfeeding and rejected her request to adjust her working pattern and put protective measures in place.
The ECJ found that the employers actions would be a breach of the Pregnant Workers Directive and therefore must be regarded as less favourable treatment of a woman related to pregnancy and maternity and would also constitute direct sex discrimination. The ECJ noted that guidelines for pregnant and breastfeeding workers under EU law require a risk assessment to be undertaken which is specific to the particular worker not just the particular role. It found that the hospital had not produced any evidence of a risk assessment which took into account Ms Ramos’ individual situation.
Although a Spanish case, the decision raises a question mark over the UK’s approach to discrimination relating to breastfeeding at work which, by virtue of S13(7) of the Equality Act 2010, cannot be brought as a ‘direct’ sex discrimination claim (only an ‘indirect’ claim). It also serves as a useful reminder that there is an ongoing duty on employers to carry out risk assessments after pregnant employees have returned to work.