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Risk assessment for breast feeding workers must take individual circumstanes into account

Makbool Javaid

Advocate General Sharpston gives an opinion that generic risk assessments of jobs where breast feeding workers are involved are not compatible with EU law as each worker’s personal circumstances have to be considered. In Ramos v Servicio Galego de Saúde and Instituto Nacional de la Seguridad Social the ECJ was asked whether, if a job performed by the worker is included in a list of risk-free jobs drawn up by the employer after consulting the workers’ representatives without further information regarding how those conclusions were reached, does this: (i) meet the requirement to conduct a risk assessment for a breast feeding worker? and (ii) if not, does it constitute direct sex discrimination?

AG Sharpston answered “no” to (i) and “yes” to (ii). The AG was clear that where a risk assessment is carried out there must be an examination of the individual situation of the worker who is breastfeeding to establish whether her safety and health or the safety and health of her child is at risk.  Should the ECJ follow this opinion, which is normally the case, then it means that generic risk assessments of a particular job where workers are pregnant, have given birth in the last 6 months or are breastfeeding, are not compatible with EU law; the particular circumstances of each worker have to be assessed.

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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