A recent case heard by the European Court of Justice looked at whether it was sex discrimination for an employer to fail to conduct a risk assessment for a breastfeeding employee.
The case looked at the working arrangements for a nurse who worked in a hospital accident and emergency unit who had returned to work after giving birth. A risk assessment was undertaken by the employer, but the assessment had not, the employee claimed, looked sufficiently at whether her work was 'risk free' in light of her status as a breastfeeding employee. The employee had asked her employer to adjust her working pattern to accomodate her breastfeeding, but the employer declined to do so. The employee claimed that her employer had failed to comply with its legal obligations to assess and improve her health and safety as a breastfeeding mother.
The European Court found that if a breastfeeding mother can show that a risk assessment was defective, or was not undertaken, this resulted in an inference, or suggestion, of discrimination, albeit that an employer could then seek to show that the risk assessment had been considered and undertaken as required.
This decision serves as a reminder to employers that the obligations arising from pregnancy and maternity do not cease when the employee or worker subsequently returns to work. Employers must bear in mind the legal obligations that arise not only to protect the health and safety at work of pregnant workers, but also those who have recently given birth and/or who are breastfeeding.
Employers must carry out risk assessments for such workers to identify any risks arising. Employers must then take steps to avoid exposing the employee or worker to such risks. In circumstances where a risk cannot be avoided, employers may need to consider temporarily changing the role, or placing the worker on paid leave for the relevant period to protect her health and wellbeing.
If you have any questions about your obligations towards a pregnant member of staff, or about one of your workers who has recently given birth or who is breastfeeding, or if we can provide any support on other employment law matters arising, please do not hesitate to contact the team on 0141 331 5150.