CJEU ruling on breastfeeding mothers risk assessment (EU)

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.

Asbestos Fines (Northern Ireland)

Several construction workers and a health trust employee were potentially exposed to asbestos during the replacement of switchboards and cabling in the basement area of a Belfast Hospital. The hospital trust was fined even though it had previously carried out asbestos surveys of the basement area which was known to contain asbestos in the form of thermal insulation debris on the floor and pipes.

Asbestos risk information was not passed on to those involved in the construction project.

The Health and Safety breaches were as follows:
– Article 4 (1) of the Health and Safety at Work Order (NI) 1978, in particular 4 (2) (a) and 4 (2) (c)
– Article 5 (1) of the Health and Safety at Work Order (NI) 1978.

Update: another asbestos case (23rd Oct) – in this incident, asbestos-containing materials were disturbed and spread during the demolition of outbuildings at a Downpatrick site.

In this case, investigation by the Health and Safety Executive for Northern Ireland (HSENI) found the person carrying out demolition work at the site had not carried out a pre-demolition survey, even though an asbestos management survey had been carried out by the site owner which had identified asbestos cement to be present or presumed to be present on the roofs and other parts of the outbuildings. The owner’s survey also identified asbestos cement debris on the floors and in the areas outside the outbuildings.

In addition, the system of work used in the demolition of the outbuildings was not safe and fell short of acceptable work practices, and there was neither a risk assessment nor a written plan of work for the removal of asbestos on the site. The method used in the demolition of these outbuildings was such that dust containing asbestos fibres was released into the air. In addition, the rubble which was created by the demolition was found to be contaminated with asbestos.

HSENI’s Duty to Manage campaign outlines the legal duties required for those who are responsible for the repair and maintenance of non-domestic properties to manage the risks from asbestos: http://asbestos.hseni.gov.uk/

Physical Agents (EMF) Directive (EU)

Directive 2013/35/EU (new European EMF Directive) has revoked the pre-existing EU Directive 2004/40/EC.

2012 amendment to Directive 2004/40/EC had postponed Member State implementation until 31st October 2013. The 2013 replacement Directive gives until 1st July 2016. We will Email Alert subscribers (to our Specialist Regulatory Support & Email Alert service) with information about the changes at the time.

The 2013 Directive sets out health effects ELVs, sensory effects ELVs and ALs in Annexes II and III.