Case law time. Pregnancy, breastfeeding and work.

A little known recent ruling from the European Court of Justice (ECJ) has interesting ramifications for employers who have pregnant women or breastfeeding mothers on their payroll. The case, Ramos v Servicio Galego de Saude, was brought by Ms Ramos, a nurse who worked in an emergency medical department of a hospital in Spain, after she was denied the ability to alter her working conditions as well as being turned down for a slew of benefits available under Spanish Law.

Ms Ramos was due to return to work 4 months after giving birth and raised a number of concerns in relation to her working conditions which she believed were impacting on her ability to breastfeed her baby. She was specifically worried about complex shifts, long working hours, ionising radiation, and general infections as well as stress due to under staffing and the sometimes extreme and unexpected workload associated with hospital emergency departments. Ms Ramos made a request to amend her working pattern, and also requested preventative measures to be put in place. This was rejected by the hospital on the grounds that her role posed no risk to her or her baby and that her job category had been categorised as risk-free by the hospital.

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Ms Ramos claimed that the risk assessment was inappropriate and did not meet the requirements of EU law (EU Directive 92/85/EEC and Directive 2006/54/EC). This was initially unsuccessful in the Spanish national courts but on appeal the Spanish court made a reference to the ECJ. Upon hearing the matter the ECJ ruled that the risk assessment carried out by the hospital was inadequate and noted that employers must examine the circumstances and working conditions of breastfeeding employees on an individual basis to determine whether there is any risk to the employee or breastfed child. It is not sufficient to just determine a role is risk-free. Specifically, the ECJ stated that a failure to properly carry out an individual risk assessment could amount to discrimination on the grounds of sex. In the instance of Ms Ramos it was deemed that the failure to make such an assessment amounted to direct sex discrimination.

So what does this mean for employees in the EU? Employers, particularly those in EU member states where breastfeeding is a taboo topic not really addressed openly or discussed, might not be aware of their obligations to pregnant and breastfeeding employees. So expectant mothers or women breastfeeding need to have a frank conversation with their line manager about their needs in this regard. Any embarrassment or cultural hang-ups about breastfeeding need to be put aside as much as possible. How can HR help with this? Well hopefully all this will be included in a policy and HR will have been able to discuss things with employees prior to them going on maternity leave. This will give the employee some confidence that the company understands the employees position and will work to ensure a smooth transition when they return to work. In some companies discussions on returning to work and breastfeeding would just be a normal every day conversation and it’ll be great when we are all there, but for the moment HR can also assist by coaching managers to have these, some would say, difficult or embarrassing conversations and maybe sit in on the first few meetings on until the managers feel confident to handle things themselves.

A lot of employers will have already been regularly carrying out risk assessments for pregnant employees, but this is sometimes forgotten when an employee returns to work and the assessments completed months ago become a distant memory. If you feel this applies to you, don’t be shy about reminding your HR department about your hopefully happy new circumstances and how you might need a period of adjustment and/or amended duties for a while.

And what does this ruling mean for employers? Basically, if an employer fails to carry out a thorough individual risk assessment of any pregnant or breastfeeding employee’s role and working conditions, they’re risking falling foul of sex discrimination laws, as well as whatever local laws have been enacted from Directive 92/85 and Directive 2006/54/EC. The potential consequences are not just financial. Failing to properly account for pregnant employees or those who have children who are breastfed will almost certainly diminish the morale of workers, particularly females. And if, god forbid, there are more damaging consequences, such as injury, miscarriage or the death of a young infant, and it turns out there was no proper risk assessment done, it could result in consequences severe enough to irreparably damage a companies reputation and incur stiff penalties to say the least.

In the opinion of this particular human resources cat, taking proper care of pregnant employees or breastfeeding mothers should have been common practice for a long time now. If an employer fails to do this they’re not only failing to properly satisfy the psychological contract, but they’re failing the women who work for them. If this becomes known within the industry current and prospective employees, particularly women, will choose to work elsewhere. We all want to work somewhere where we are valued for our contributions to the business. By neglecting the needs of breastfeeding mothers companies risk losing good people and what they bring to their business, as well as driving them to their competitors.

And on a more humanistic note, pregnancy is very obviously a vital part in making sure there are people who follow us, making sure there are people to work and build and look after us in the future and in our old ages, and make sure the is still a world here when we pass on. Business, which operates in human society, has as much a responsibility to protect that as anything.

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