As Clear As Day: Shifts can constitute night work
Wednesday 10th October 2018
Under the Pregnant Workers Directive (PWD) an employer may be obliged to alter the working conditions or hours of work for a worker who is pregnant or breastfeeding. It may also be required to provide her with alternative work, or suspend her from work (on full pay) in order to avoid risks that she could be exposed to as a result of work being done in the workplace.
In Gonzalez Castro v Mutua Umivale, ProsegurEspana SL, Instituto Nacional de la Seguridad Social, the claimant, a Spanish security guard, worked a variable pattern of 8 hour shifts. These included various shifts between midnight and 8am. In 2014 she gave birth to her son, and subsequently breast-fed him. Her employer deemed that her duties and working conditions did not affect breast-feeding and so refused to alter her job role or suspend her.
The case found itself before the European Court of Justice (ECJ) at the appellate stage from the Spanish courts. The ECJ ruled that the PWD should be construed alongside the provisions of The Working Time Directive (WTD), which applies, in particular, to certain aspects of night work, shift work and patterns of work. The ECJ found that a worker who performed shift work, only part of which is at night, still comes within the definition of ‘night work’ for the purposes of the WTD and PWD, and so should be afforded the above protections.
The ECJ did not make clear whether it was the fact that the claimant was classed as a ‘night worker’ under the WTD (the claimant satisfied the requirement to work at least 3 hours between midnight and 5am), or whether it was making a more general point that any amount of time spent working during ‘night time’ would qualify for protection.
However, it is likely that employers will have to suspend from work relevant workers (including those for whom only part of their shift falls at night time) if they produce a medical certificate, unless the employer is able to offer a suitable alternative employment.