Ms. Otero Ramos, the Claimant, was a breastfeeding mother who worked as a nurse in the emergency unit of the Respondent’s hospital. The Respondent had performed a risk assessment that had concluded her role was risk-free. The risk assessment did not offer any explanation or methodology for how this conclusion was reached. Her request for an adjustment in her work pattern due to breastfeeding was declined. The Claimant initiated proceedings. She argued that the vague risk assessment was in breach of the European Directive to improve the health of pregnant and breastfeeding workers and also breached the Equal Treatment Directive.

The Court of Justice of the European Union agreed. It held that if a breastfeeding or pregnant woman can show that the risk assessment was flawed, or, not done at all, then that gives rise to a discrimination claim. The burden is on the employer to prove that the risk assessment had been done in accordance with the relevant EU Directive.

The takeaway point:

Yes, not conducting a proper risk assessment, or, not conducting one at all, will give rise to a discrimination claim. In Employment Tribunals, successful sex discrimination claims arising from pregnancy/maternity discrimination can give rise to an injury to the feeling award which is banned but can reach £38,000.00 in the higher band, if the psychiatric damage is caused by the discrimination.