Pregnant And Breastfeeding Women Working Shift Work Entitled To Special Protection Under The Pregnant Workers Directive
The European Union Court of Justice (ECJ) has ruled in Gonzalez Castro v Mutua Umivale, ProsegurEspana SL, Instituto Nacional de la Seguridad Social (INSS) C-41/17 that pregnant workers, workers who have recently given birth, or those who are breastfeeding while working shifts, some of which are at night, must be regarded as performing night work and enjoy specific protection against the risks that night work is liable to pose.
The case involved a Spanish shopping centre security guard who performed night shifts alone. In November 2014, she gave birth to a son whom she breastfed. Her insurers refused her request to issue a certificate that her job posed a risk to her breastfeeding. Such a certificate would have meant under Spanish law that, if her job could not be altered or she could not be transferred to another suitable role, her employment would be suspended, and she would be entitled to an allowance. The insurers did not believe the Claimant’s role affected her ability to breastfeed.
At first instance, the Spanish Court dismissed the Claimant’s application. On appeal, the Court referred the issue of whether shift work could be ‘night work’ for the purposes of the Pregnant Workers Directive 92/85/EC (PWD) to the ECJ.
The ECJ concluded that a worker who undertakes shift work whereby only part of their duties are performed at night, must be regarded as performing work during ‘night time’ and therefore classified as a ‘night worker’ within the meaning of the Working Time Directive 2003/88/EC (WTD). The Court also held that specific provisions in the PWD must not be interpreted less favourably than the WTD; therefore, the Claimant was covered under the PWD with regard to the ‘night work’ provisions under Article 7. The Court held that this conclusion was supported by the purpose of Article 7, which was to enshrine the right of pregnant workers and workers who have recently given birth or are breastfeeding not to be made to perform night work which posed a risk to their health and safety.
What this decision means for UK Employers
The Management of Health and Safety at Work Regulations 1999 (the MHSW Regulations) implement in the UK the provisions of the PWD. Those regulations must, therefore, be interpreted in a way which is consistent with the PWD. As such, the effect of this judgment is likely to be that the phrase ‘works at night’ in regulation 17 of the MHSW Regulations will be interpreted in harmony with the meaning of ‘night time’ and ’night worker’ in the WTD. Employers will have to suspend pregnant workers, workers who have recently given birth or those who are breastfeeding while working shifts of which some of it is at night, if they produce an appropriate medical certificate, unless they can offer suitable alternative employment.
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