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Conducting a risk assessment for breastfeeding mothers

Napthens - May 23rd 2018

Are employers required to carry out a risk assessment for breastfeeding mothers? According to the Equality Act 2010 the answer is yes and failure to do so may amount to direct sex discrimination. But there is an exception to this rule the same act expressly disapplies this protection in the workplace.

However, the European Court of Justice has now cast doubt on this position in the case of Otero Ramos v Servicio Galego de Saude.

The Case

The claimant worked as a nurse in the hospitals accident and emergency (A&E) department. Given she was breastfeeding, her employers’ carried out a risk assessment, which deemed her work to be “risk free”. As such he request for an adjustment in her working pattern on account of her breastfeeding was declined. Whilst, her employer found her job to be “risk free”, they had failed to provide a substantial explanation into their findings.

Conversely, her line manager who also happened to be the senior consultant for the A&E department provided a letter highlighting a variety of risks facing a breastfeeding woman and her child. This letter evidenced that the initial assessment carried out by her employer did not take into account her individual circumstances, in relation to the specific role that she carried out.

Therefore, it was found that if a breastfeeding mother can show that a risk assessment was defective or hadn’t been done, it could result in direct sex discrimination. As such, the onus would be on the employer to show that the risk assessment had been taken and was suitable to the employees’ circumstances.

What Should You Do?

In light of Otero Ramos, it is advisable to adapt a proactive approach when carrying out risk assessments. Failure to do so could give rise to a claim of direct sex discrimination. Any assessment undertaken should:

  • Take the worker’s personal situation into account
  • Consider any relevant medical reports
  • Be kept under regular review