On 19th October the Court of Justice of the European Union (CJEU) ruled on a REQUEST for a preliminary ruling under European Union treaty law made by the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain).
This REQUEST asked for clarification on the matter of the employer’s risk assessment of breast feeding mothers in the workplace.
The court found :
(1) The European Equal Opportunites & Equal Treatment Directive 2006/54/EC must be interpreted as applying to a situation (such as that at issue in the main Spanish court proceedings), in which a breastfeeding worker challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work – in so far as she claims that the assessment was not conducted in accordance with Europan Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.
(2) On a proper construction of European Directive 2006/54 (in a situation such as that at issue in the Spanish court proceedings), it is for the worker in question to provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements of Article 4(1) of Directive 92/85 and from which it can therefore be presumed that there was direct discrimination on grounds of sex within the meaning of Directive 2006/54 (in the case). It would then be for the defendant to prove that that risk assessment had been conducted in accordance with the requirements of that provision (risk assessment of breast feeding mothers) and that there had, therefore, been no breach of the principle of non-discrimination.
The CJEU judgment is here.
The UK HSE guidance is as yet unchanged. The UK HSE guidance states a specific risk assessment is not required when an employer is notified a worker is a new or expectant mother. This guidance is here.
NB: ACAS is finalising new guidance on preventing pregnancy and maternity discrimination at work. UPDATE : this guidance is here.
The Cardinal Environment EHS Legislation UK websystems contain Law, ACOPs, HSGs and some other health and safety relevant guidance. They do not contain ACAS documents, please refer to legal specialists in Employment Law for further guidance.