By Charles Power

[Ed Note: In a previous bulletin, we looked at how you can meet your legal obligation to accommodate employees with a disability.

Under federal and State/Territory legislation, a disability or impairment is a protected attribute. This means that if you disadvantage an employee based on a disability or impairment, you may be liable under anti-discrimination legislation.

That’s why it’s so important to know what is classified as a disability under the legislation.

Disability includes:

• physical illnesses;
• mental illnesses; and
• behaviour that is a symptom or manifestation of the disability, e.g. an employee being late for work due to medication that causes them to sleep in.

A recent decision by the Victorian Civil and Administrative Tribunal (VCAT) has also confirmed that severe morning sickness is a disability for the purposes of the Equal Opportunity Act 2010 (Vic).

Read on for the details…]

VCAT finds severe morning sickness is a disability

Last week, VCAT found that a pregant employee was discriminated against when her employer failed to make reasonable adjustments to accommodate her severe morning sickness.

The employee had been diagnosed with a severe form of morning sickness called Hyperemesis Gravidarum and, as a result, suffered from migraines, back pain, ankle pain and foot pain.

She alleged that her employer had directly discriminated against her by making adverse comments relating to her pregnancy, sick leave, lifting boxes, sitting down at work and toilet breaks.

Direct discrimination occurs when an employer (or an agent of the employer) treats an employee less favourably because they have an attribute that is protected under relevant legislation.

While, in this case, the Tribunal did not uphold all of the employee’s direct discrimination claims, it did find that the employer had directly discriminated against the employee under Victoria’s Equal Opportunity Act 2010 because its agent had:

• made adverse comments about her toilet breaks; and
• responded to the employee’s absences with text messages saying, “I’m f—king sick of this” and “You better f—king come in”.

The employee also alleged that the employer had indirectly discriminated against her by imposing requirements in relation to moving boxes, standing during shifts, taking breaks at certain times, refraining from taking sick leave, working a 30-hour week and taking short breaks.

Indirect discrimination occurs when an employer imposes a condition or requirement:

• with which an employee cannot comply because of an attribute protected under the legislation; and
• that is unreasonable in all the circumstances.

In this case, the Tribunal found that the employer had not imposed any such conditions or requirements.

What you can take from this case

If one of your employees is affected by morning sickness, remember:

• physical impairment, gender and pregnancy are all protected attributes under anti-discrimination legislation;
• severe morning sickness is considered a disability; and
• anti-discrimination legislation requires you to take reasonable steps to accommodate pregnant employees in the workplace.