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Tribunal Rules Severe Morning Sickness Is A “disability” – Discrimination Claims

Tribunal rules severe morning sickness is a “disability” – Discrimination Claims

Pregnant women suffering severe morning sickness have the right to protection under discrimination laws, after a Victorian tribunal ruled the condition was a disability.

The ruling was made in the case of a Melbourne phone shop worker, who lodged a civil lawsuit against her employers, alleging that they discriminated against her for being pregnant, and for not making “reasonable adjustments” to accommodate her disability.

According to a report in Fairfax, the Victorian Civil and Administrative Tribunal heard the woman suffered from Hyperemesis Gravidarum – a severe form of morning sickness, which would result in migraine, back pain, ankle pain and foot pain, which restricted her body from functioning properly.

Senior Member Ian Proctor said in “ordinary life” a pregnant woman suffering morning sickness would not constitute a disability, but the symptoms of Hyperemesis Gravidarum constituted a disability under the law.

Fairfax reports that the woman claimed her employer’s actions relating to sick leave, lifting boxes, sitting during work hours and toilet breaks amounted to discrimination.

The woman was sent text messages from her managers after taking a number of days off which read “I’m f**king sick of this”, and “You better f**king come in”.

VCAT found that in doing so, the store managers breached the state’s Equal Opportunity Act.

However the tribunal rejected the worker’s claim that other text messages were also discriminatory.

Mr Proctor said the store manager’s “general tenor was calm acceptance” when she let him know she would not be in, he either replied ‘OK’ or did not reply.

He said it was direct, and showed some frustration but was not out of the ordinary.

Mr Proctor also agreed that the manager directly discriminated against the woman when commenting about her taking lengthy toilet breaks over a week-long period, however he went on to reject her other claims, including that her employer’s actions amounted to constructive dismissal.

He also rejected her claim that the store failed to make reasonable adjustments on bathroom visits, allowing her to sit more – required for an employee with a disability.

VCAT said the company attempted to accommodate her performing a sitting job after she announced her pregnancy, but “due to morning sickness, her working days were punctuated by sick leave”.

Pregnant women are protected by the Sex Discrimination Act, along with various state and territory anti-discrimination legislation.

Discrimination occurs when an employee is treated less favourably or disadvantaged because of pregnancy, potential pregnancy, breastfeeding or family responsibilities.

Christiaan Van Oeveren, from employee advocacy firm Industrial Relations Claims, says it’s against the law for employers to discriminate against employees on the basis of illness or disability.

“It’s not the employer’s prerogative to decide the impacts of a medical condition, regardless of what their understanding of the condition might be,” he said.

“It’s up to medical experts to determine whether a person has a medical condition and the impacts of that medical condition on their capacity to work.

“In this case, the Tribunal has determined the employee’s morning sickness was so severe, that it qualified as a disability, and on that basis she cannot be discriminated against because of it.”

If you believe that you have been discriminated against because of pregnancy, get expert and confidential advice from Discrimination Claims today on 1300 853 837.

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