Equality between female and male employees at the workplace is very topical at the moment and over recent months a completely new movement has appeared in Spain seeking to stamp out any discrimination against female workers on grounds of sex.

Still a source of conflict is the protection of women who are pregnant, have recently given birth, or are breastfeeding a child under 9 months, where risks are posed at the workplace that could have adverse repercussions for the health of the female worker or the child.

Although it is now more than 11 years since the entry into force of Organic Law 3/2007, on actual equality between women and men, which amended the Occupational Risk Prevention Law to add rules on the protection of workers where a risk is posed to breastfeeding mothers, to give them the same treatment as pregnant women, there are still some doubts in practice over how to address this protection.

Article 26 of the Occupational Risk Prevention Law requires companies to carry out specific risk assessments in relation to workers who are pregnant, have recently given birth, or are breastfeeding, and if their exposure to the identified risks cannot be avoided, the employer must adapt the job, move the employee to another job temporarily, or even hold the employment contract in abeyance as a result of the risk to breastfeeding mothers, under article 45.1.e) of the Workers’ Statute.

In practice however, as we have said, conflicts are still arising which have to be taken to the Spanish courts to be settled. A notable example is a recent decision by the Court of Justice of the European Union, of October 19, 2017 (C-531/2015), which has settled a request for a preliminary ruling submitted by Galicia High Court in a case in which a hospital nurse requested the financial benefit in respect of risk during breastfeeding due to considering that her job posed a risk to the breastfeeding of her child.

The hospital submitted a report from the department of preventive medicine which declared she was fit, together with a report drawn up after consultation with the workers’ representatives, finding that her job was risk-free. On the basis of this evidence, both the Spanish social security institute (INSS) and the labor court took the view that the risk had not been shown, and therefore rejected the benefit. The worker challenged that decision by providing a letter signed by her line manager stating that the work of a nurse in that unit posed physical, chemical, biological, and psychosocial risks to the worker.

After considering all these elements, the CJEU concluded that any less favorable treatment of a female worker due to her being a breastfeeding woman must be regarded as direct discrimination on grounds of sex, and recalled that a breastfeeding worker may not be treated in the same way as any other worker, since her specific situation necessarily requires special treatment on the part of the employer, for which a correct assessment of the specific risks in this situation is a basic requirement.

On the basis of this decision, Galicia High Court overturned the lower court’s judgment, on November 8, 2017, in a judgment confirming that the worker is entitled to the financial benefit in respect of the risk while she is breastfeeding, and acknowledging that a correct assessment of the risk as required by European and Spanish law had not been performed, and that the hospital did not prove that the job could be adapted.

In the wake of this European decision, which openly acknowledges that refusal to allow this benefit must be seen as one more instance of discrimination on the grounds of sex, that European case law has similarly been applied in other recent Spanish judgments, which may be found in the supreme court judgments of April 3, 2018 or June 26, 2018.

As you can see, this is another step forward along the path of complete equality and protection of the right to freedom from discrimination on grounds of sex.


María Luisa Pérez López

Garrigues Labor and Employment Law Department