EU Court: “Pregnant workers and workers who have recently given birth or are breastfeeding who work night shifts must enjoy specific protection against the risks posed by such work”

“Pregnant workers, workers who have recently given birth or are breastfeeding who work 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”: this is according to the Judgement delivered by the Court of Justice of the European Union in Case C-41/17, involving a Spanish national. Ms Isabel González Castro works as a security guard for Prosegur España SL., a release from the Court explains. In November 2014, “she gave birth to a boy who was breastfed. Since March 2015, Ms González Castro has performed her duties in a shopping centre, on the basis of a variable rotating pattern of eight-hour shifts, some of which are worked at night. She sought the suspension of her contract and the grant of the allowance provided for under Spanish legislation”. To that end, she requested the Mutua Umivale (a non-profit private mutual insurance company providing cover for risks relating to accidents at work and occupational diseases) to issue her with a medical certificate indicating the existence of a risk to breastfeeding posed by her work. Her application having been refused, Ms González Castro lodged a complaint which was rejected. She then brought an appeal against that rejection before the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain).
“Directive 92/85 on the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding – the Court stated today – provides, in particular, that those workers must not be obliged to perform night work during their pregnancy and for a period following childbirth, subject to submission of a medical certificate stating that this is necessary for their safety or health”. Directive 2006/54 on equal treatment of men and women in matters of employment and occupation “provides, for its part, for a reversal of the burden of proof”. Therefore, “when a person considers himself wronged because the principle of equal treatment has not been applied to him and establishes, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it is for the respondent to prove that there has been no breach of the principle of equal treatment”. It is in that context that the Tribunal Superior de Justicia de Galicia decided to refer questions to the Court of Justice.
By its judgement today, the Court ruled, in the first place, that “Directive 92/85 applies to a situation where the worker concerned does shift work during which only part of her duties are performed at night”. In the second place, the Court sentenced that “the rules of reversal of the burden of proof laid down in Directive 2006/54 apply to a situation such as that of Ms González Castro, provided that the worker concerned adduces factual evidence to suggest that the risk assessment of her work did not include a specific assessment taking into account her individual situation and thus permitting the presumption that there is direct discrimination on the grounds of sex, within the meaning of that directive”. The judgement is available at: www.curia.europa.eu.