Vice-President of Court A Tizzano,
Judges A Borg Barthet, M Berger, F Biltgen (Rapporteur)
Advocate General E Sharpston
The claimant employee, Ms Elda Otero Ramos, was a nurse in the accident and emergency unit of a Spanish hospital and the mother of a young baby. She informed her employer that she was breastfeeding her child and that the tasks required by her work were liable to have an adverse effect on her milk and expose her and her child to health and safety risks, due, inter alia, to a complex shift rotation system, radiation, risk of infections and stress. She therefore lodged a request for the adjustment of her working conditions and for preventative measures to be put in place. After that request was rejected, the employee requested a medical certificate from the defendant Spanish social security authorities, the Servicio Galego de Saúde and the Instituto Nacional de la Seguridad Social, for the purposes of the grant of a financial allowance in respect of risk during breastfeeding. On the basis of a risk assessment of her work undertaken by the employer, required by article 4(1) of Council Directive 92/85/EEC, the authorities decided that it had not been shown that the employee’s work posed a risk for the breastfeeding of her child and therefore rejected her request. The documents on which the risk assessment was based did not contain any substantiated explanation on how the employer’s conclusions were reached, merely stating that the employee’s job was “risk-free” and that she was fit to carry out the tasks relating to her work. Under article 5 of Directive 92/85, if the results of the article 4(1) assessment revealed a risk to the health or safety, or an effect on the pregnancy or breastfeeding of a worker, the employer had to ensure that the exposure of that worker to such risks was avoided, either by temporarily adjusting the working conditions and/or the working hours of the worker concerned, or moving the worker to another job or granting the worker leave. Under article 19(1) of Parliament and Council Directive 2006/54/EC, although it was for the claimant worker to establish facts from which it could be presumed that there had been discrimination, it was for the defendant to prove that there had been no breach of the principle of equal treatment or discrimination on grounds of sex. The employee claimed that the risk assessment of her work was not conducted in accordance with article 4(1) and challenged the authorities’ decision. On the employee’s appeal against the dismissal of her claim, the High Court of Justice of Galicia, Spain, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the questions, in essence, whether: (1) article 19(1) of Directive 2006/54 applied to a situation such as that in issue, in which a female worker challenged the risk assessment of her work in that it was not conducted in accordance with article 4(1) of Directive 92/85; and if so, (2) how article 19(1) of Directive 2006/54 should be applied to a situation such as that in issue.
On the reference—
Held, (1) since the condition of a breastfeeding woman was intimately related to pregnancy or maternity leave, workers who were breastfeeding had to be protected on the same basis as workers who were pregnant or had recently given birth. Accordingly, a failure to assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of article 4(1) of Council Directive 92/85/EEC constituted less favourable treatment of a woman relating to pregnancy or maternity leave and was, therefore, direct discrimination on the grounds of sex within the meaning of Parliament and Council Directive 2006/54/EC. Such discrimination was covered by the prohibition provided for by that Directive, in so far as it was related to the employment and working conditions of the worker in question. Further, it followed from article 5 of Directive 92/85, that a finding of a risk to the health or safety of that worker or of an effect on breastfeeding, following the article 4(1) assessment, should lead to the adjustment of her working conditions and/or working hours, a move to another job, or leave from work for the whole of the period necessary to protect her safety or health. Accordingly, article 19(1) of Directive 2006/54 applied to a situation, such as that in issue, in which a breastfeeding worker challenged, before a court or other competent authority of the member state concerned, the risk assessment of her work in so far as she claimed that the assessment was not conducted in accordance with article 4(1) of Directive 92/85 (judgment, paras 46, 51, 59, 60, 63, 64 ,65, operative part, para 1).
(2) The rules of evidence provided for in article 19(1) of Directive 2006/54 did not apply at the time that the worker in question requested an adjustment of her working conditions or, as in the present case, a financial allowance in respect of risk during breastfeeding, but were to be applied only at a later stage when a decision relating to the risk assessment taken under article 4(1) of Directive 92/85 was challenged by the worker. In a situation such as that in issue, the requirement under article 19(1) meant that the worker in question had to present facts or evidence capable of showing that the risk assessment of her work was not conducted in accordance with article 4(1) and that she was therefore discriminated against. It was only when the worker had established such facts or evidence that the burden of proof was shifted back to the defendant. It would therefore be for the defendant to prove that the risk assessment was conducted in accordance with the requirements of article 4, bearing in mind that documents such as a certificate from the employer according to which the work was classified as “risk-free”, in conjunction with a certificate according to which the worker in question was “fit” to work, without any explanations capable of substantiating those conclusions, could not alone provide an irrebutable presumption that such was the case. The same rules of evidence applied in the context of article 5 of Directive 92/85, in particular, in so far as a breastfeeding worker requested leave from work for the whole of the period necessary to protect her safety or health and provided evidence showing that the protective measures provided for elsewhere in article 5(1) and (2), namely, an adjustment of the working conditions or a move to another job was impracticable, it was for the employer to establish that those measures were technically or objectively feasible and could be reasonably required. Accordingly, on the proper construction of article 19(1) of Directive 2006/54, in a situation such as that in issue, it was for the worker in question to provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements of article 4(1) of Directive 92/85 and from which it could therefore be presumed that there was direct discrimination on grounds of sex within the meaning of Directive 2006/54, which was for the referring court to ascertain. It would then be for the defendant to prove that that risk assessment had been conducted in accordance with the requirements of that provision and that there had, therefore, been no breach of the principle of non-discrimination (judgment, paras 67, 69, 70, 74,75, 76, operative part, para 2).
Kelly v National University of Ireland (University College, Dublin) (Case C‑104/10) EU:C:2011:506; [2012] 1 WLR 789; [2012] ICR 322, ECJ applied.
F López López, for the claimant employee.
S Carballo Marcote for the first defendant authority.
A Lozano Mostazo and P García Perea for the second defendant authority.
A Gavela Llopis and V Ester Casas, agents, for the Spanish Government.
J Guillem Carrau, C Valero, A Szmytkowska and I Galindo Martín, agents, for the European Commission.