Occupational hazard during breastfeeding: risk assessment and burden of proof. Judgment of the ECJ (Fifth Chamber) of 19th October 2017. Case Elda Otero vs Servicio Galego de Saúde

Abstract

The ECJ has commented recently on the implementation of European anti-discrimination legislation assuming that a worker appeals a business decision about risk assessment in her position during breastfeeding. Luxembourg has considered that, when an assessment is carried out without observing the obligations set out in the Directive 92/85, it leads to gender discrimination. In that judgment, the ECJ states that, if risk assessment is not properly carried out, a reversal of the burden of proof occurs when the worker appeals the benefit for risks during breastfeeding before a judicial body.