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UpdatesMar 30, 2015

When can morning sickness be considered 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.

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:

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:

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:

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:

Regards,
Charles Power
Editor-in-Chief

Employment Law Practical Handbook

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