Employees who work on a shift basis, a part of which shift must be carried out at night-time, are to be considered as night workers, the Court of Justice of the European Union (CJEU) has recently affirmed. This means that should such employees be pregnant, have recently given birth or are breastfeeding, they must be afforded specific protection as required by law.
EU law makes provision for specific safeguards for employees who are pregnant, have recently given birth or are breastfeeding, to ensure utmost protection of their health and safety. Thus, national laws, among other measures, must ensure such employees are not obliged to perform night work, subject to the submission of a medical certificate stating that this is necessary for the safety or health of the worker concerned. It must be possible for such an employee to transfer to daytime work or take special leave from work where such a transfer is not feasible.
The facts of this case were briefly as follows. Ms González Castro worked as a security guard and was assigned duties in a shopping centre, on the basis of a variable rotating pattern of eight-hour shifts. Some of these shifts were worked at night. The employee was at the same time breastfeeding her baby. She sought the suspension of her contract and applied with the relevant national organisation for the issuance of a medical certificate indicating the existence of a risk to breastfeeding posed by her work as well as for the issuance of an allowance as provided for by Spanish law.
Her application was, however, refused and the employee filed proceedings before the relevant national courts to overturn the rejection. The national court filed a preliminary reference before the CJEU requesting guidance as to the interpretation of the concept of ‘night work’, within the meaning of EU law. It also requested guidance as to who, in terms of EU law, should bear the burden of proof in a case such as the one under examination.
Particularly, the national court queried whether it is for the employee concerned or for the employer/relevant national organisation, to demonstrate that the adjustment of the working conditions or the transfer of the employee to another job were not technically or objectively feasible or could not be reasonably required.
The CJEU affirmed that an employee who does shift work, in the context of which only part of the duties are performed at night, must be regarded as performing work during ‘night time’. The employee in question must therefore be classified as a ‘night worker’. However, the Court pointed out that, to benefit from protection, a pregnant employee or someone who has just given birth or is breastfeeding must submit a medical certificate stating a transfer from night work is necessary for her safety or health.
The Court went on to provide that, in so far as the burden of proof is concerned, the same rules found in the EU Directive on equal treatment of men and women in matters of employment and occupation apply. The latter directive provides that when a person feels that he has been discriminated against, and lays down before a court facts from which it may be presumed that there has been direct or indirect discrimination, it is then for the employer to prove that there has been no such discrimination.
With reference to the case under examination, the CJEU observed that a risk assessment must include a specific assessment taking into account the individual situation of the employee concerned in order to ascertain whether her health or safety, or that of her child, are jeopardised. The employee must therefore provide factual evidence to suggest the risk assessment of her work did not include such a specific assessment, taking into account her individual situation. If there is no such assessment, the situation amounts to less favourable treatment of a woman related to pregnancy or maternity leave, and constitutes direct discrimination on grounds of sex. It would then be up to the employer to provide evidence to the contrary.
The EU legislative framework has in place clear rules and policies to ensure utmost protection of the health and safety of female employees at a time when they are most vulnerable. Such measures ensure female employees are not forced to leave the labour market due to the particular situation they find themselves in because of maternity.
It is through the implementation of such measures that a level playing field between men and women, when it comes to employment, can be achieved and participation of more women in the labour market is encouraged.
Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.
mariosa@vellacardona.com