(CN) - A mall security guard found vindication at Europe’s highest court on Wednesday in her bid for acknowledgement of the special risks she would face if made to work night shifts while breastfeeding.
Isabel Gonzalez Castro brought the suit here after returning to work as a shopping center security guard for Prosegur in March 2015, about four months after giving birth to a son.
While the job usually allowed Gonzalez Castro to work eight-hour shifts with another guard, she had to work alone during the shifts that began at midnight on Monday to Thursday, 2 a.m. on Friday, 3 a.m. on Saturday, and 1 a.m. on Sunday.
Gonzalez Castro lodged a complaint when her insurer Umivale refused to issue her a medical certificate indicating that her work posed a risk to her breastfeeding. When the Social Court in Lugo dismissed her action, Spain’s High Court of Justice in Galicia put her ensuing appeal on hold to gain insight from the European Court of Justice.
As noted in the ruling, Article 7(2) of the Directive 92/85, an EU law governing night work, allows a worker in Gonzalez Castro's situation to transfer to daytime work or, failing that, leave from work so long as she submits “a medical certificate stating the need for such a measure for her safety or health.”
The Fifth Chamber of the Court of Justice sided Wednesday with Gonzalez Castro.
“A worker who, as in the case in the main proceedings, does shift work in the context of which only part of her duties are performed at night must be regarded as performing work during ‘night time’ and must therefore be classified as a ‘night worker,’” the opinion states.
Published in Luxembourg, the ruling goes on to note that “it is in the interest of pregnant workers, workers who have recently given birth or are breastfeeding to be subject … to the specific provisions laid down by Directive 92/85 relating to night work, in particular in order to strengthen the protection that those workers must enjoy in that regard.”
“If a breastfeeding worker who, as in the main proceedings, performs shift work were to be excluded from the scope of Article 7 of Directive 92/85 on the ground that only part of her duties are performed at night, that provision would be deprived in part of its effectiveness,” the ruling continues. “The worker concerned may be exposed to a risk to her health or safety and the protection she is entitled to under that provision would be considerably reduced.”
The ruling notes later that Umivale’s risk assessment of Gonzalez Castro’s “work did not include a specific assessment taking into account her individual situation and that she was discriminated against.”
“It is ultimately for the referring court, which alone has jurisdiction to assess the facts of the case before it, to verify whether that is indeed the case,” the opinion continues.
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