A failure to take risk assessments for breastfeeding mothers seriously could be direct discrimination
Most employers are by now familiar with the process of undertaking a risk assessment for new or expectant mothers in the workplace. The requirement to carry out a risk assessment comes from the Management of Health and Safety at Work Act 1999. It requires employers to take into account any risks posed to the mother from any processes, working conditions or physical, chemical or biological agent (“special risks”) and record the same in a risk assessment.
Whilst generally there is a requirement for every employer to undertake a health and safety risk assessment, and record any findings relating to the same, there is nothing in the statute books which states that those findings must be provided in written form to the employee, as long as the employee has been made aware of the same orally.
If the outcome of any risk assessment shows that the new or expectant mother is at risk then an employer is required to either alter the employee’s hours of work, offer alternative work or, where suitable alternative work is not available, suspend the employee on paid suspension.
Where employers have historically fallen foul of the law in the past is when a mother returns to work and is still breastfeeding. The law is clear that any risk assessment must take into account not only the period leading up to childbirth but also the period six months following childbirth or where an employee is still breastfeeding upon her return to work.
In January we covered a case where EasyJet lost an employment tribunal claim relating to breastfeeding mothers. This note can be read HERE.
A quick search of the Employment Tribunal judgments website also provides a number of cases where employers have failed to understand the requirements for breastfeeding mothers in the workplace.
At the end of October 2017 the European Court of Justice (ECJ) heard the case of Ramos v Servicio Galego de Saude. Ms Ramos was a nurse who was mainly based in the A&E department of a Spanish hospital. After making her employer aware that she was breastfeeding, she raised concerns about her working conditions, in particular in respect of her shift work and the exposure to radiation and infections in the workplace. The employer rejected Ms Ramos’s concerns and refused a request for a change of shift pattern and protective measures.
After losing in the national courts, Ms Ramos took her case to the ECJ who found in her favour. In its judgment, the ECJ stated that the employer had focused the risk assessment too much on expectant mothers and had collated very little information on those individuals returning to work and/or breastfeeding. In particular the risk assessment appeared to reach a conclusion that there was no risk to those returning to work without any explanation as to how such a conclusion was reached.
In addition, the ECJ was satisfied that a letter from Ms Ramos’s line manager, substantiating her claims, was evidence that her employer did not take into account Ms Ramos’s personal circumstances and therefore the employer did not comply with the requirement of carrying out a satisfactory risk assessment. The case is due to return to the Spanish courts to determine liability and compensation, if applicable.
Interestingly, the ECJ found that the failure of an employer to assess the risk for breastfeeding workers could constitute direct sex discrimination. Under the UK’s Equality Act 2010, women are specifically excluded from bringing a direct sex discrimination claim under such circumstances, meaning that our legislation now appears to conflict with EU law. Whether the UK Government decide to change the legislation or simply wait until Britain leaves the EU and refuses to enforce the same remains to be seen. However, in the meantime, it is very likely that an individual could bring a direct discrimination claim in these circumstances and rely on the precedent set in Ms Ramos’s case.
What should you be doing now?
All management, HR and Health and Safety teams should be reminded to focus any risk assessments not only on expecting mothers but also on those returning to work following pregnancy/adoption leave.
A record should be kept locally for all departments and if necessary individual job roles. The assessments should be regularly updated to take into account any changes in process or environment.
What does this mean for you or your business?
With most employers pre-occupied in their day to day activities, risk assessments are often outsourced to contractors or passed to middle management who have little knowledge of risk assessment requirements.
Employers should be aware that the compensation available for employees who are successful in discrimination claims, whether that be sex discrimination or pregnancy/maternity discrimination, is technically unlimited and very significant compensation (sometimes running into the millions) are not unheard of in UK Tribunals. It is therefore critical that risk assessments are carried out only by those who are qualified in doing so in order to offer the most protection to the business.
Whilst employers have historically been successful in defending claims where they have failed to undertake a risk assessment for new or expectant mothers by arguing that their working environment did not contain “special risks” we always recommended that a risk assessment is carried out.
The Health and Safety Executive has produced information and guidance on carrying out risk assessments which can be found HERE.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.