In Case C41/17 on Thursday 26 April, Advocate General Eleanor Sharpston suggests in her Opinion that the burden of evidence should be borne by the employer who has been criticised for having practiced discrimination against a breastfeeding employee in a case where he had not assessed how the risks of the work of his employee could affect her health.
The case in point involves a breastfeeding Spanish employee and security guard working in a rotating work system with eight hour day and night shifts. Her medical insurance company and employer refused to recognise the existence of a risk to her health linked to her job.
The employee took the dispute to the Spanish court, which filed several preliminary rulings with the European Court of Justice.
The Spanish court requested information about whether the Union rules stipulating that breastfeeding workers are not obliged to work nightshifts also applies to shift work and if the working conditions for the complainant could pave the way to an irrebuttable presumption of discrimination exercised by the employer.
In law, the combination of directives 89/391 and 92/85 stipulate that breastfeeding workers constitute a specific risk group and, as such, require protection against the dangers that specifically affect them. The possible dangers relating to their activities should therefore be assessed and subject to measures from the employer if they are characterised, notably in the event of night work - by an assessment and measures, which in this case failed to be taken.
Advocate General Sharpston, interpreting directive 2006/54, concluded that they needed to include night work and shiftwork when the latter is partially carried out during the night and subsequently offer guaranteed protection by directives 89/391 and 92/85 for the breastfeeding worker working shift work. Ms Sharpston holds that the burden of proof must return to the defendant when there is the appearance of discrimination, as there is in this case.
If this Opinion is followed by the ECJ, it will create a new irrebuttable presumption of discrimination for employers. (Original version in French by Mathieu Solal, trainee)