Workers Who Breastfeed - What Do Employers Need to Do?
A recent European case raises questions about the steps that an employer should take to protect the health and safety of breastfeeding workers.
Ramos v Servicio Galego de Saude
Ms Ramos was a nurse working in the A&E department of a Spanish hospital. She raised concerns with her employer regarding certain aspects of her working conditions and the effects that these may have on her breastfeeding. In particular, Ms Ramos said that she was worried about the complex shift system in place and her potential exposure to ionising radiation, as well as healthcare associated infections and stress.
The hospital refused a request from Ms Ramos to adjust her working conditions and issued a report stating that her role did not pose any risk to breastfeeding her child. Ms Ramos subsequently applied for a financial allowance available under Spanish law for breastfeeding workers deemed to be unable to continue in their role due to the risk to her or her breast-fed child. Her application was rejected on the basis of reports provided by the hospital. Ms Ramos challenged the decision in the Spanish courts, and the case was referred to European Court of Justice (ECJ).
The ECJ held that where there had been a failure to assess the risk posed to a breastfeeding worker in accordance with the requirements of EU law, this would constitute less favourable treatment of a woman related to pregnancy or maternity leave and direct sex discrimination. In particular, the court emphasised that where a role poses a potential risk to a breastfeeding worker or their child, employers are required under EU law to assess the individual circumstances of that particular worker.
What Should Employers Be Doing?
Employers do have obligations to breastfeeding mothers and should be wary that there may be risks other than those associated with pregnancy. Therefore, any risk assessment which was conducted whilst the worker was pregnant may need to be reviewed on her return to work if the employee raises concerns around breastfeeding.
The impact of the decision on UK law is unclear. The Equality Act 2010 currently prevents a woman from bringing a claim for direct discrimination where she has suffered a detriment because she breastfed at work. The decision in Ramos calls this legislation into question and employers should, therefore, remain alert to the needs of breastfeeding workers.