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Victorian Tribunal finds that morning sickness constitutes a disability

In a recent decision, the Victorian Civil and Administrative Tribunal have found that pregnancy related ‘morning sickness’ may constitute a disability under the Equal Opportunity Act 2010 (Vic) (Act).

In the case, a pregnant full time employee asked to reduce her full time hours to 28 hours a week. The employee experienced severe morning sickness and had been diagnosed by her doctor to this effect. The employee had taken significant time off and had exhausted her personal leave and annual leave entitlements.

The employee asked the doctor whether it would be reasonable for her to reduce her hours to 28 hours per week. The doctor agreed that reducing her hours was reasonable due to a number of factors that pointed towards the employee having a high risk pregnancy.  The doctor provided a medical certificate supporting that the employee needed to reduce her hours.

Her employer rejected her request, asserting that the business was a small business and her position was one for full-time hours and they could not operationally accommodate her request. The employee resigned as a result of this rejection.

It is important to note that during the hearing, the employer was found to have made some insensitive and ultimately discriminatory comments to the employee and had also been found to have discriminated against her in relation to comments about the extended bathroom breaks that she had allegedly been taking.

The Tribunal found that, based on the medical evidence, her morning sickness was a disability under the Act, and that the employer had discriminated against the employee in relation to some of the comments that had been made to her. However, the Tribunal rejected that the employer had erred in its decision to reject her reduced hours proposal based on the requirements of the business.

Implications for employers: Employers should always act reasonably when considering requests from pregnant employees about their working arrangements, particularly when medical evidence demonstrates concerns for the employee’s welfare.  Aitken Legal always recommends employers seek legal advice where uncertain of their legal position in these circumstances.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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