In Otero Ramos v Servicio Galego de Saúde (Case C-531/15) EU:C:2017:789, the ECJ held it was directly discriminatory for an employer to fail to conduct a risk assessment compliant with Article 4(1) of the Pregnant Workers Directive (92/85/EC) (PWD) to assess the risks posed to a breastfeeding worker by their work.
This judgment requires a re-evaluation of the UK’s statutory protections for breastfeeding mothers and the case law interpreting those protections. As a consequence, advice to employers on the extent of the risk assessment duties to breastfeeding mothers should be revisited.
Direct discrimination under the Equality Act 2010
The Equality Act 2010 (EqA) recognises that treating a woman less favourably because she is breastfeeding constitutes direct sex discrimination (section 13(6)(a)). However, the EqA expressly disapplies that protection in the workplace (section 13(7)). That restriction surely cannot now survive and ought either to be repealed entirely or at least amended to correspond with Otero Ramos. Until then, section 13(7) can no longer provide solace to employers.
Requirement to conduct a risk assessment: proactive or reactive?
Perhaps of greater practical significance, the Otero Ramos judgment suggests domestic case law is wrong about when an obligation arises to conduct an Article 4(1) risk assessment.
Article 4(1) specifies that an employer must conduct an assessment “For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I”. The Annex includes some industry-specific risks and others of general application, for example:
- Handling of loads entailing risks.
- Movements and postures.
- Mental and physical fatigue.
Article 4(1) must be read in the light of guidelines produced by the European Commission under Article 3. In Otero Ramos, the court confirmed the guidelines must be taken into account in interpreting Article 4(1), as they serve as the basis for the assessment referred to in that Article.
As the court notes, the guidelines describe a risk assessment as “a systematic examination of all aspects of work in order to identify the probable causes of injuries or damage and to establish how these causes can be contained in order to eliminate or reduce risks.” They set out three required phases for an assessment to be PWD compliant:
- Identification of hazards.
- Identification of worker categories (that is, pregnant workers, those who have given birth and those who are breastfeeding).
- Risk assessment in both qualitative and quantitative terms.
The guidelines are clear in emphasising the employer’s “obligation” to conduct a risk assessment for all female workers who fulfil the criteria laid down in Article 2 of the PWD. This includes breastfeeding workers. Moreover, as the court recognised, the guidelines emphasise the requirements for the risk assessment to be individualised, taking specific account of the worker in question, and to be regularly reviewed.
Article 4(1) is transposed into UK law by regulation 16(1) of the Management of Health and Safety at Work Regulations 1999 (SI 3242/1999). That regulation only requires an Article 4(1) risk assessment for a breastfeeding worker where the work is of a kind which “could” involve risk to the mother or her baby. In Madarassy v Nomura International Ltd  EWCA Civ 33, the Court of Appeal held there was no obligation under regulation 16(1) to conduct a risk assessment for a new or expectant mother absent evidence of potential risk to health and safety. This decision was then followed by the EAT in O’Neill v Buckinghamshire County Council  IRLR 384. Surprisingly, the guidelines drawn up under Article 3 of the PWD are not mentioned in either judgment (nor in the EAT judgment in Madarassy UKEAT/0326/03).
The ECJ in Otero Ramos appears to take a more expansive view of the Article 4(1) requirement, seeing it as a proactive obligation. There is no suggestion it is only activated where risk is identified. This is unsurprising in the light of the emphasis the guidelines give to the obligation.
The court’s approach to the evidence needed to shift the burden of proof under Article 19 of the Equal Treatment Directive (2006/54/EC) is instructive. Ms Otero Ramos’s hospital produced a statement from the HR director that an A&E nurse was on a list of risk-free jobs, and a report from a doctor who examined Ms Otero Ramos and (without providing reasons) declared her fit to carry out the tasks relating to her work. The hospital’s risk assessment went no further than that. By way of contrast, Ms Otero Ramos’s line manager (the hospital’s senior A&E consultant) wrote a letter identifying a variety of risks to a breastfeeding worker and her child. The court held that letter constituted evidence capable of showing the risk assessment did not take account of Ms Otero Ramos’s individual situation and thus failed to comply with Article 4(1). The court made no mention of the letter satisfying the burden by showing potential risk to activate the obligation to carry out an individualised risk assessment, as per domestic authority. That the obligation was activated was taken as read, the court concentrating on failure to comply with the specific requirements of the obligation.
What to advise employers
As a consequence of Otero Ramos, employers who have previously awaited presentation of evidence of potential risk before carrying out an Article 4(1) risk assessment should be advised to adopt a proactive approach or risk a direct discrimination claim. The assessment should:
- Take the individual worker’s personal situation into account.
- Consider any relevant medical reports provided.
- Be kept under regular review.
In terms of what to look for, there is no better reference than the risk assessment tables produced as part of the European Commission’s guidelines.