A recent European case has highlighted the need to ensure that risk assessments are undertaken not only for pregnant workers but also for those workers that return to work and are still breastfeeding.

The Pregnant Workers Directive requires employers within member states to ensure that pregnant or breastfeeding workers are safe whilst they are within the workplace. To assess this, employers are required to undertake a risk assessment. The risk assessment should look at the working environment and should include considering exposure to shocks, vibration or movement, noise, ionising radiation, extremes of temperature and biological and chemical agents. If an employer identifies any risk to the worker, steps should be taken so that the worker avoids the risk.

This may require the need to place the worker within a different role or remove some of their duties so that the risk is no longer present. If you are unable to remove the risk and ensure the health and safety of the pregnant worker and her unborn child, it may be necessary to suspend them on full pay.

The latest case before the European courts of Justice concerned a worker who returned to work whilst still breastfeeding. The worker was a nurse based in the accident and emergency department of a Spanish hospital. When the child was four months old the worker raised her concerns that the conditions in which she worked may have an impact on her lactation and her ability to breastfeed. The worker therefore asked to change her working conditions and for protective measures to be put in place. The hospital did not accept her request as it did not consider that there was any risk to her being able to breastfeed and issued a report confirming this.

The worker followed a number of steps in the Spanish Courts and eventually the matter was referred to the ECJ. The ECJ held that if an employer fails to adequately assess the risks that a breastfeeding mother may face within the workplace it is less favourable treatment relating to her pregnancy or maternity leave and sex discrimination.

Therefore, it is important for all employers to ensure that they not only undertake a risk assessment at the time that the worker confirms that she is pregnant but also upon her return to work after her maternity leave if a worker informs an employer that she is breastfeeding. It is important to remember that the risks associated with being pregnant and breastfeeding are different so you should not rely on the risk assessment of worker during her pregnancy.

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