Isabel González returned to her job as a security guard in Lugo, four months after becoming a mother. His shift included eight-hour shifts and part of the shift was at night. As she was still breastfeeding her son, she asked her company to suspend the contract and receive a financial benefit, taking the risk during breastfeeding established by Spanish law.
His request was denied and he ended up filing a claim with the Supreme Court of Galicia. In turn, this regional body went to the Court of Justice of the European Union (CJEU) to resolve various doubts about the claim. Now, Europe agrees with Isabel : “There was ‘apparently’ no personalized study of the risks and the person concerned suffered discrimination”.
What did the mother demand?
Isabel González asked Prosegur, the security company for which she worked as a security guard, the suspension of the contract and a financial benefit.
She had reincorporated after her maternity leave four months after being a mother and was breastfeeding her child, so by assigning her eight-hour rotating shifts that included night hours in a Lugo shopping center, she understood that there was a health risk , based on Law 31/1995, of November 8, on the prevention of Occupational Risks.
To achieve this, he asked the Umivale mutual for the medical certificate that attests the existence of some type of danger in his case, but this refused to give it to him and the company filed his claim, because without a certificate, there is no discharge.
For this reason, Isabel denounced possible discrimination before the Superior Court of Justice of Galicia (TSXG), which decided to go to the Court of Justice of the European Union (CJEU) to resolve various doubts about the claim.
What does European law say?
The Superior Court of Justice of Galicia asks the European:
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Can you talk about night work even if it is only part of that schedule?
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If it is possible that the assessment of the risks presented by Isabel’s job was not carried out correctly and that, in reality, her job presents a risk to her health or safety.
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Is it the worker or the mutual who must demonstrate that the working conditions “are not technically or objectively possible”?
Make the query based on two European regulations:
- Council Directive 92/85 / EEC, of October 19, 1992, on the application of measures to promote the improvement of safety and health at work of pregnant workers, who have given birth or are in a period of lactation. It says that women:
“They should not be forced to perform night work during pregnancy or during a period following childbirth, subject to the presentation of a medical certificate attesting to the need for it for their safety or health.”
- Directive 2006/54 / EC of the European Parliament and of the Council, of July 5, 2006, on the application of the principle of equal opportunities and equal treatment between men and women in employment and occupation matters. According to this standard:
“When a person who considers himself harmed by not having applied the principle of equal treatment present, before a court or other competent body, facts that allow presuming the existence of direct or indirect discrimination, corresponds to the defendant to demonstrate that he has not there has been a violation of the principle of equal treatment ”.
What does the Court of Justice of the EU answer?
- It recognizes that the watchman’s shift work is considered night work , since Directive 92/85 does not contain any precision on the exact scope of the concept of night work.
In addition, it points out that from the general provisions of Directive 2003/88 EC of the European Parliament and of the Council, of November 4, 2003, relating to the organization of working time, it follows that a worker who performs work must be considered To shifts that include night hours, you must qualify as a night worker.
- Like any activity that may pose a specific risk to a pregnant or lactating woman, a medical certificate must be issued that clearly states the hazards of the job .
The European Court of Justice insists that:
“You have to study the individual situation of the employee and determine whether her health or safety or those of her child are exposed to a risk. In the event that said examination has not been carried out (which is what apparently happened in this case), there will be less favorable treatment for a woman in relation to pregnancy or maternity leave ”.
In other words, the performance involves discrimination on the grounds of sex.
Now the decision remains in the hands of the Superior Court of Justice of Galicia, which is the one that will have to rule in favor or against Isabel González.
Via | Medical Journal and La Opinion A Coruña
Photos | iStock
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