A risk assessment was carried out where the hospital denied any problem and stated that Elda’s work did not pose any risk to breastfeeding her child and refused her request. There was no explanation in the assessment on how it reached this conclusion.
NOTE. Although Elda worked in Spain, the legislation requiring protection of nursing mothers at work is almost identical to that in the UK. In the UK, the requirement to assess risks to new and expectant mothers, is set out in the Regulation 16 Management of Health and Safety at Work Regulations (MHSWR).
In May 2012, Elda took her case to the INSS (Institute for Social Security) with a supporting letter from a senior consultant. However, after examining a statement from the hospital, which stated that her work was “in the list of risk-free jobs” and a report of a doctor from the hospital’s preventive medicine and occupational risks department confirming she was “fit to carry out the tasks relating to her work” the INSS rejected her claim in October 2013.
Elda appealed the decision and the case was referred to the European Court of Justice where in October 2017 her claim was upheld. The court agreed that the risk assessment fell below the standard required to protect her and her child and therefore amounted to sex discrimination.
The Court’s ruling has had the effect of opening additional routes for legal action by employees where risk assessments for breastfeeding mothers are unsatisfactory. Employees could already make a claim if harm was caused by a breach of Regulation 16 MHSWR, but now staff can make a claim for sex discrimination under s.67 Employment Rights Act 1996, simply on the evidence of an insufficient risk assessment.
WHAT IF THIS EFFECTS YOU?
If you’re informed that an employee is breastfeeding, carry out an individual risk assessment as soon as possible. In low hazard environments you should be able to carry out the risk assessment in-house. But for more complex situations and high risk workplaces (radiation, biological hazards ect.), you should obtain help from an Health & Safety Advisor e.g MS Associates Ltd.
NOTE. If your risk assessment of a breastfeeding mother’s work isn’t good enough to protect her and her child you might face a claim for sex discrimination.
For more information on this matter please either contact us or visit http://www.hse.gov.uk/mothers/faqs.htm.
To ensure your future risk assessments meet current legislation, contact us about training courses available.