EU Directive 92/85/EEC is aimed at protecting the health and safety of women in the workplace who are pregnant, have recently given birth or are still breastfeeding. Under UK law as it currently stands, an employer need only undertake a risk assessment specific to the work of a new mother who is breastfeeding if it has already identified that this could involve a risk to her or her baby. However, in Otero Ramos v Servicio Galego de Saude, the Court of Justice of the European Union (CJEU) ruled that employers must carry out a risk assessment for all mothers who continue to breastfeed after their return to work if they are to avoid discrimination claims.

Ms Otero Ramos works as a nurse in the A&E department of the University Hospital of A Coruña in Spain. On her return to work after giving birth, she informed her employer that she was breastfeeding her child and that certain aspects of her work – specifically a complex shift rotation system, exposure to ionising radiation and healthcare-associated infections, and stress – were liable to have an adverse effect on her breast milk and expose her to health and safety risks. She requested that her working conditions be adjusted and preventative measures be put in place. Her employer rejected her request, however, on the ground that her work did not pose any risk to breastfeeding her child.

In challenging that decision in court, Ms Otero Ramos claimed that the risk assessment of her work had not been carried out in accordance with Directive 92/85 and this failure was in breach of the Equal Treatment Directive (EU Directive 2006/54/EC). In support of her claim that a risk assessment was necessary, she provided a letter from the senior consultant in the A&E department stating that the work of a nurse in that unit posed physical, chemical, biological and psychosocial risks to a breastfeeding worker and to her child. Her claim was rejected, however, on the ground that she had not shown that her work posed the alleged risks. Ms Otero Ramos challenged that decision and the appeal court sought clarification from the CJEU.

The CJEU ruled that the risk assessment of a breastfeeding worker must include a specific assessment that takes into account her individual situation in order to ascertain whether her health and safety or that of her child is exposed to risk. Furthermore, where the worker in question has provided evidence capable of suggesting that the risk assessment of her work has not been carried out accordingly – thus giving grounds for a claim of sex discrimination – it is then up to the employer to prove that the risk assessment has been conducted in accordance with Directive 92/85 and there has been no breach of the principle of non-discrimination.