Risk assessments required for breastfeeding mothers

The Court of Justice of the European Union (CJEU) in Otero Ramos v Servicio Galego de Saude has ruled that employers must now carry out an individual risk assessment for breastfeeding mothers returning to their role.

This is a change from current UK law whereby employers are only required to conduct a risk assessment if the breastfeeding mother works in an environment that has previously been identified as a potential risk to her and/or her baby.

The Case

Ms Ramos, an A&E nurse working in a Spanish hospital notified her employer that she was breastfeeding and requested for her working conditions to be amended, and for precautions to be established to protect her and her baby. The manager denied her request for a risk assessment due to her role being “risk-free.”

Following her manager's response, Ms Ramos obtained a letter via her senior consultant asserting that the work of a nurse could cause physical, chemical, biological, and psychosocial risks to a breastfeeding mother and her baby.

The CJEU decided that the hospital had discriminated against Ms Ramos, and should have weighed up the risk personally as opposed to relying on general risk assessment considerations. Pregnancy and breastfeeding alike aren’t static conditions, therefore similar working environments can conjure up different health and safety issues for different women, at different times.

UK health and safety legislation

The UK’s Management of Health and Safety at Work Regulations 1999 contradict this recent outcome, and therefore the regulations may need to be amended. The existing regulations say that employers are only required to conduct a risk assessment for a breastfeeding mother if “she is working in a situation that could involve a risk to her or to her baby”.

Therefore, the current regulations suggest that if there is no identified risk to the breastfeeding mother, then a new risk assessment is not required.

The Pregnant Workers Directive

The results of Ms Ramos’ case means that employers will need to take precautions to avoid direct discrimination claims. The Pregnant Workers Directive (an EU directive) gives more weight to the protection of breastfeeding women in the workplace. It states that “employers must conduct a risk assessment for all activities that involve a specific risk of exposure to biological and chemical agents, and extremes of cold and heat.”

The following general hazards also need to be considered:

• Mental and physical fatigue and working long hours;
• postural problems;
• working at heights or alone;
• occupational stress;
• standing and sitting activities;
• lack of rest and other welfare facilities;
• risk of infection or kidney disease because of inadequate hygiene facilities;
• hazards due to inappropriate nutrition; and
• hazards due to unsuitable or absent facilities.

Considerations for employers

With the CJEU and the PW Directive stating that employers must carry out a risk assessment regarding potential hazards to pregnant or breastfeeding mothers, based on the nature of work they do and their individual circumstances, this suggests that employers should undertake an assessment when these scenarios arise.

Additionally, UK tribunals are required to interpret UK law in a way that is compatible with the decisions of the CJEU.

Notes for employers:

• Consider carrying out risk assessments for all pregnant and breastfeeding workers;
• identify each individual worker’s circumstances and working environment along with any medical advice that they have received; and
• keep risk assessments up-to-date with current working conditions.

If a risk assessment does reveal a potential problem, you should inform all individuals concerned. You are also required to explain what you intend to do to ensure that new and expectant mothers are not exposed to risks that could cause them any harm. The worker's representatives should also receive this information.

Contact

If you require any assistance with the topics discussed in this article, or require other advice on employment law, you can contact Susan Mayall on 0161 684 6948.

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