In the case of Otero Ramos v Servicio Galego de Saude, the Court looked at the working arrangements for a nurse who worked in a Spanish hospital accident and emergency unit who had returned to work after giving birth. A risk assessment was undertaken by the employer, but the assessment had not, the employee claimed, looked sufficiently at whether her work was 'risk free' in light of her status as a breastfeeding employee. The employee had made a request for an adjustment to her working pattern on account of her breastfeeding and preventative measures to be implemented. Her concerns included the complex shift rotation system, exposure to ionising radiation, healthcare-associated infections and stress.
The report issued by her employer stated that her work did not pose any risk to Ms Ramos breastfeeding her child and as a result declined her request to adjust her working conditions.
Ms Ramos claimed that Servicio Galego de Saude had failed to comply with its legal obligations to assess and improve her health and safety as a breastfeeding mother.
The CJEU found that if a breastfeeding mother can demonstrate that a risk assessment was not conducted or was defective, this results in a suggestion of discrimination. The Court found that the employer had failed to perform an individual assessment of the employee’s circumstances, as required by law and had instead, carried out an assessment of the employee’s role as an accident and emergency nurse.
The Court held that an employer’s failure to properly assess the risk posed by the work of a breastfeeding employee, in accordance with its legal obligations under EU law, must be regarded as less favourable treatment and constitutes direct discrimination on the gender ground.
This decision serves as a reminder to employers that they must be mindful of the legal obligations that arise not only to protect the health and safety at work of pregnant workers, but also those who have recently given birth and/or who are breastfeeding.
Safety, health and welfare protection in Ireland for employees who are pregnant, have recently given birth or are breastfeeding while working.
In Ireland, the Pregnancy at Work Regulations which form part of the Safety, Health and Welfare at Work (General Application) Regulations 2007 apply from the time an employee informs their employer that she is pregnant, has recently given birth or is breastfeeding and provides an appropriate medical certificate.
There is a requirement that a risk assessment is carried out immediately after the employee has informed the organisation that she falls into one of the above categories.
There are a number of hazards/risks specified under the health and safety Regulations that broadly break down into physical, biological and chemical agents, exposure to which would be deemed a hazard. If any such risks are identified and it is not practicable to ensure the safety or health of the employee through protective or preventative measures, then the organisation must temporarily adjust the working conditions or the working hours (or both) of the employee concerned, so that exposure to such risk is avoided.
If medical certification specifies that night-work is a risk to the employee’s safety or health, the organisation must ensure that she is not required to perform night-work during pregnancy or for the 14 weeks following childbirth. The employee concerned should either be transferred to day-work or, where this is not possible, she will be entitled to health and safety leave. It should be noted that an employee transferred to day-work will not retain her night-shift premium.
Health and safety leave process
If a risk has been identified and it cannot be taken out of the process, then the organisation must:
1. temporarily adjust the employee’s working conditions or working hours to remove the risk;
2. if step 1 is not technically or objectively feasible, transfer the employee to other work, or, in the case of night-workers, to day-work;
3. if step 2 is not technically or objectively feasible, give the employee health and safety leave.
An employee who becomes aware that she is no longer vulnerable to the risk for which she has been granted health and safety leave is obliged to inform the organisation in writing of the fact, as early as reasonably practicable.
Likewise, if a risk no longer exists, or if the organisation is in a position to offer suitable alternative work, the organisation will notify the employee in writing and the health and safety leave will expire seven days after receipt of the organisation’s notification to return to work.
Health and safety pay
The employee is entitled to be paid by the organisation for the first 21 calendar days of health and safety leave granted in any period surrounding a pregnancy. During the remainder of the leave, the employee may receive a health and safety benefit from social welfare, depending on her PRSI contributions.
Payment from the organisation for health and safety leave is basic pay plus any bonus or allowance normally paid, but does not include additional amounts or premiums due to night-work, overtime, shift-work, working unsocial hours, standby or on-call allowances.
Where an employee is not on a fixed rate and has an irregular employment pattern, her basic week will be calculated over an average of the previous 26 weeks.
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Monday, 20 November 2017