On Wednesday 19 September in Case C-41/ 17, the Court of Justice of the European Union stated that breastfeeding workers who work some shifts at night, must be regarded as performing 'night work' and enjoy specific protection against the risks of this kind of work.
Ms Isabel González Castro, a security guard for Prosegur España gave birth to a boy at the end of 2014, who she was going to breastfeed. Since March 2015, she has performed her duties in a shopping centre, on the basis of eight-hour shifts, some of which are worked at night. She sought the suspension of her contract and the grant of an allowance to cover the risk to breastfeeding posed by her work as contained within Spanish legislation.
To that end, she requested the Mutua Umivale, which provides cover for risks relating to accidents at work and occupational diseases, to issue her with a medical certificate. Her application was refused and she lodged a legal appeal.
Asked to interpret the case on behalf of the Spanish court, the Court of Justice points out that directive 92/85 seeks to enhance the protection of pregnant workers and workers who have recently given birth or are breastfeeding and applies to the plaintiff.
The Court claims that this directive does not contain any details as regards the exact scope of the concept of ‘night work’ and must not be interpreted either less favourably than Directive 2003/88 on the organisation of working time, according to which a worker in Ms González Castro's situation must be described as a 'night worker'.
The plaintiff will therefore be able to benefit from protection as part of night work as soon as she presents a medical certificate that attests to this necessity.
Reversal of the burden of proof. The Court also considers that it is up to the defendant, in this case the Prosegur España company or Mutua Umivale - to prove that the arrangement of working time or change of Ms González Castro’s post is not technically or objectively possible or are unreasonable demands.
The Court observes that the risk assessment of Ms González Castro’s work did not sufficiently take into account the individual situation of the worker, according to the evidence put forward by Ms González Castro. It will therefore be up to the Spanish court to verify whether the interested party has been discriminated against under the terms of directive 2006/54 on the equal treatment between men and women. This directive includes a reversal of the burden of proof. (Original version in French by Mathieu Bion)