- Failure to carry out proper risk assessment for breastfeeding worker: sex discrimination and burden of proof (Otero Ramos v Servicio Galego de Saúde)
- Original news
- What is the impact of this Judgment?
- What is the relevant law in this area?
- What were the background facts?
- What did the Spanish courts decide?
- What was the Opinion of the Advocate General?
- What did the ECJ decide?
- Case details
Employment analysis: Where a risk assessment under Article 4(1) of the Pregnant Workers Directive 92/85 is carried out there must be an examination of the individual situation of the worker who is breastfeeding to establish whether the safety and health of her or her child is at risk in accordance with that provision and the guidelines referred to in Article 3(1) of that directive. A failure to carry out such an assessment correctly is less favourable treatment of the worker concerned and constitutes discrimination for the purposes of Article 2(2)(c) of Directive 2006/54 (the ‘Equal Treatment Directive’). Such treatment is direct discrimination based on sex within the meaning of Article 19(4)(a) of the Equal Treatment Directive and thus falls within the scope of the burden of proof rules laid down in Article 19, which provide that if a worker establishes facts or evidence from which it may be presumed that there has been discrimination the burden shifts to the employer to prove that there has been no such discrimination. In so far as it is necessary in the context of the national proceedings for that court to determine whether further action (and if so, what action) should have been taken pursuant to Article 5 of the Pregnant Workers Directive to protect the safety and health of the worker concerned, the provisions of Article 19 of the Equal Treatment Directive (ie the reverse burden of proof) apply to that assessment, according to the ECJ.
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