Pregnancy Discrimination & Employer Obligations

Posted by on Apr 17, 2013 in Blog, Consultancy & Training, Legal Services | Comments Off

Pregnancy Discrimination & Employer Obligations

It is illegal to discriminate against a pregnant employee. The Fair Work Act makes it unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family/carer responsibilities, religion, political opinion, national extraction or social origin.

Discrimination against a pregnant employee can take many forms. It may be that the employer reduces the employee’s hours, downgrades their position, refuses flexible working conditions without a strong business case, or does not reinstate them to the same level of responsibility they had previously after returning from parental leave.
In 2012 the Courts, on several occasions showed their willingness to use the adverse action provisions in the Fair Work Act 2009 to penalise employers who discriminate against pregnant employees.

Wongtas
Ms Ye was an employee of a printing company, Wongtas. She worked in the office. After Ms Ye told the Directors that she was pregnant Ms Ye had a miscarriage and took a period of sick leave. When Ms Ye returned to work she found that she had been demoted from her admin position to packing duties and the attitude of her employers had changed. Ms Ye asked about the changes to her employment and she was met with aggression and discriminatory comments about the inconvenience of her pregnancy and the employers cultural viewpoint. Later Ms Ye made a complaint to the FWO which led to an investigation conducted by FWO. The Directors terminated Ms Ye’s employment shortly after becoming aware of the complaint made to FWO.
The Directors were ordered to pay the employee $2,207.42 and received a penalty of over $23,000.00.

Ucchino
Following Wongtas, in the case of Ucchino v Acorp Pty Limited the Federal Magistrate Court found that a childcare centre took adverse action against a pregnant employee whose employment was terminated following the announcement of her pregnancy.
The employee requested leave without pay in order to look after her children during the school holidays. During this leave the employee advised her employer that she was pregnant and would be taking maternity leave later in the year. When she returned from unpaid leave she discovered her position had been changed from Director of the childcare centre to a “staff relief float” with less pay, different duties and no sick leave or holiday leave. The employer also made discriminatory comments to the employee, stating that her pregnancy “made it hard” for the business. When the employee refused to accept the changes to her role, her employment was terminated.
Federal Magistrate Jarrett did not believe the employer’s evidence that the worker’s employment was terminated because of performance issues, mainly because these alleged issues were never taken up with the employee in any meaningful way at all before her termination.

The Court is taking these breaches very seriously. Jarrett FM stated that these contraventions were no trivial or technical breach of the Fair Work Act and that this case “struck at the heart of the protections afforded to employees by section 351 of the FW Act”.  He awarded damages for her economic loss, and imposed an additional penalty of $5,500,

In 2010 – 2011 the Fair Work Ombudsman received 1171 complaints of sex discrimination 96 % of these related to pregnancy discrimination. The FWO has prosecuted many employers since 2009.
If are unsure how to accommodate a pregnant employee’s needs and to ensure you are not discriminating in your work practices please make an appointment to discuss this with us.

We can provide advice and tailored workplace training on:
- avoiding discrimination in your workplace
- performance management
- workplace investigations
- policies & procedures
- negotiating and bargaining

If you’re considering training at your workplace contact Kayte directly kathryn.lewis@demirlegal.com.au

Fair Work Ombudsman v Wongtas Pty Ltd (No 2)[2012] FCA 30
Ucchino v Acorp Pty Limited [2012] FMCA 9