Breastfeeding protection: consequences derived from a wrong risk assessment. STJUE commentary, 19th October, Otero Ramos (C 531/15)

Abstract

The reference for the preliminary ruling deals with the question of how to understand article 19.1 of Directive 2006/54, the reversal of the burden of proof, in relation to a worker who is breastfeeding; to do so, the CJEU must first consider if we are facing a case of discrimination. In order to resolve this issue, the CJEU must reformulate the reference for the preliminary ruling and add its interpretation for another precept, article 4.1 of Directive 92/85, i.e., how a risk assessment should be conducted in relation to a worker who is breastfeeding.

This reference is solved by declaring that reversing the burden of proof is appropriate when the worker in question impugns a decision on the risk assessment in front of a court or another competent authority; but she must previously have proven the facts, or provided supporting evidence that shows that the risk assessment presented by her job was not accomplished in accordance with the article 4.1 of Directive 92/85, because, in that case, we would be facing a case of direct discrimination by reason of gender.