Employment Rights Update – October 2017

Morrish SolicitorsEmployment, Site NewsLeave a Comment

With Brexit edging ever closer, we thought we’d sneak in some European Court of Justice decisions for this month, whilst they are still relevant! Both decisions relate to the protection afforded to women from unfavourable treatment.

Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62

In this case, the ECJ considered whether a height requirement imposed by the Greek police was indirect discrimination.

A national law in Greece requires candidates applying for officer training at police school to be a minimum height. Male and female candidates must be at least 1.7 metres tall, without shoes.

Ms Kalliri applied to join the police school but her application was rejected on the basis that she did not meet the minimum height requirement. She was only 1.68 metres tall. Ms Kalliri presented a complaint to the Greek Court of Appeal who held that the requirement was contrary to the constitutional principle of equality of the sexes.

The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State then asked the ECJ whether the minimum height requirement was compatible with the Equal Treatment Directive.

The ECJ decided that the minimum height requirement constituted indirect sex discrimination and it was not objectively justified.

The minimum height requirement was indirectly discriminatory against women because far more women than men were disadvantaged by the requirement. The Greek government’s aim of enabling the effective accomplishment of the various functions of the police force was a legitimate aim. However, the height requirement was not a proportionate means of achieving that aim because:

  • Not all police functions required the use of significant physical force or the use of particular physical aptitude. For example, providing assistance to citizens or traffic control.
  • Even if all the functions carried out by the Greek police required a particular physical aptitude, physical aptitude is not necessarily connected with being over a certain height.
  • Until 2003, Greek law required women to be a minimum height of 1.65 metres to enter the police, and men 1.7 metres. The minimum height requirement for women to enter the Greek armed forces, port police and coast guard was only 1.6 metres.
  • The legitimate aim could be achieved by measures that were less disadvantageous to women, such as carrying out pre-selection aptitude tests allowing their physical ability to be assessed.

A long line of ECJ decisions have now consistently decided that blanket requirements or restrictions will not be upheld unless there is compelling evidence to show that the requirement is a proportionate means of achieving the identified legitimate aim. Employers cannot therefore rely on assumptions about physical ability and there must be clear evidence to justify a blanket requirement. Thankfully, the UK police force decided to abandon their minimum height requirement some time ago – but other employers out there with blanket application restrictions should be wary.

Ramos v Servicio Galego de Saude (C-531/15) EU:C:2017:789

Ms Ramos is a nurse in the A&E department of a Spanish hospital.

She notified her employer that she was breastfeeding and believed her working conditions could have an adverse impact on her lactation. She was particularly concerned about the risks associated with working shifts and potential exposure to ionising radiation, healthcare associated infections and stress. Ms Ramos asked for adjustments to her working conditions and protective measures. The hospital refused, stating that her role did not pose any risk to breastfeeding her child.

Ms Ramos then applied for a financial assistance grant available under Spanish law to breastfeeding mothers deemed to be at risk. Her application was rejected. It took into account:

  • Ms Ramos’s job had been included in the list of risk-free jobs drawn up by the hospital after consultation with workers’ representatives.
  • A doctor’s report in the department of preventive medicine and occupational risks confirmed that Ms Ramos had been declared fit to carry out the tasks relating to her work.

Ms Ramos challenged the decision before the Spanish social court, with support from her line manager, a senior consultant in the A&E department, who stated that working in the department posed a physical, chemical, biological and psychosocial risk to a breastfeeding worker and her child. The court dismissed Ms Ramos’s application.

Ms Ramos appealed and the court made a preliminary reference to the ECJ.

The ECJ decided that a failure to assess the risk posed to a breastfeeding worker must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and constitutes direct sex discrimination.

The EU Health and Safety guidelines require an examination of the specific circumstances of an individual breastfeeding mother’s working conditions. The documentation the hospital sought to rely upon did not contain any substantiated explanation as to how their conclusion was reached. However, the letter from Ms Ramos’s line manager substantiated her claims and it was therefore possible that the risk assessment of her work did not take into account her individual situation. The risk assessment may not therefore have been carried out in accordance with the legal requirements. However, it was for the referring court, after a consideration of all the evidence, to decide whether that was the case.

Employers must therefore make sure they comply with their ongoing duties to carry out a risk assessment where a worker returns from maternity leave and informs them she is breastfeeding.  The potential risks may well be different to when they were pregnant and should be individually assessed, taking into account the particular worker’s own circumstances and job role.

The decision also impacts on the validity of section 13(7) of the Equality Act 2010. Under that section a woman cannot pursue a claim for direct sex discrimination if she suffers a detriment because she has breastfed at work. On the face of it, this is incompatible and inconsistent with Ramos and with European law. Hopefully this will be addressed sometime before we exit Europe!

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