Why failing to carry out a proper risk assessment led to a finding of sex discrimination.

Why failing to carry out a proper risk assessment led to a finding of sex discrimination.

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31 Oct 2017

Discrimination cases can be the most expensive to defend and carry the highest compensation payments for successful claimants. When Ms Ramos, a nurse breastfeeding her 4 month old child, claimed her role was causing risk to her and her baby, her employer relied on a standard risk assessment which showed her role to be ‘risk free’. The European Court of Justice subsequently ruled that its actions amounted to sex discrimination.

Ms Ramos is a Spanish A&E nurse who felt that elements of her role were causing her undue stress and risk while she was breastfeeding. She requested a number of changes including to her working hours, but these were refused by her employer. For its part the employer referred to a general risk assessment for pregnant employees which included Ms Ramos’ role as one that was regarded as ‘risk free’ and they also relied on a medical report which declared her fully fit for duties. Ms Ramos did not agree that her role was risk free and her manager supported her belief that her role posed chemical, biological, physical and psychosocial risks to her and to the child she was breastfeeding.

Through a series of appeals the case ended up in the European Court of Justice whose decision is binding on all member states including for the time being the UK. The ECJ observes that the risk assessments relied on by the employer did not explain how they regarded her role as being ‘risk free’ and they believed that her line manager’s account of her role was sufficient to question the risk assessment and capable of amounting to evidence in itself that the role did in fact present risks to her and her baby’s health.

This case contains a number of lessons for any employer with a pregnant or breastfeeding employee:

  • Don’t forget to do an individual risk assessment – assessment forms are freely available from the HSE website. Don’t rely on a general assessment
  • Ideally involve the employee in the assessment
  • The risks for a pregnant employee and a breastfeeding employee may be different – cover both in the risk assessment or separate assessments
  • If there appear to be risks, be prepared to make adjustments. Risks in particular arise from (but are not limited to) shift work, physical roles, stressful roles and roles that carry an exposure to chemicals or contamination/infection risk.

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