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Pregnancy Discrimination and The Law

Reading time: 11 mins

Pregnancy discrimination is not uncommon. Pregnancy discrimination occurs when an employer treats a pregnant worker differently from others because of their pregnancy status. Despite the progress made in workplace equality, pregnancy discrimination remains a significant concern.

This article discusses pregnancy discrimination, its definition, and the rights of pregnant employees. We will also discuss the cases decided by the Australian courts to provide an understanding of this issue.

Anti-discrimination laws aim to ensure fairness and an inclusive workplace. These laws apply to all employees, regardless of their pregnancy status.

What is pregnancy discrimination?

Employers discriminate when they treat an employee less favourably because of pregnancy.

Examples of pregnancy discrimination include:

  • the employer terminates an employee’s employment after becoming aware of pregnancy;
  • the company makes an employee redundant before she takes maternity leave and does not consider any alternative positions;
  • the employer reduces an employee’s work hours during pregnancy; and 
  • upon their return from parental leave, the employer presents the employee with lower pay, status, or responsibility.
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What are the governing laws on pregnancy discrimination?

Australia prohibits discrimination against employees in connection with pregnancy.

The relevant laws include:

  • Sex Discrimination Act 1984;
  • Commonwealth, State and Territory Equal Opportunity laws;
  • Fair Work Act 2009; and
  • Anti-Discrimination Act 1991

Sex Discrimination Act 1984 (SDA) and Anti-Discrimination law

The Sex Discrimination Act and Anti-Discrimination Law prohibit any form of discrimination. Discrimination can occur because of a person’s sex, gender identity, intersex status or sexual orientation. It can also occur because of marital or relationship status, family responsibilities, pregnancy or potential pregnancy, or breastfeeding status.

Discrimination can be direct or indirect. Direct pregnancy discrimination refers to the less favourable treatment of a woman because of pregnancy or potential pregnancy. Indirect pregnancy discrimination occurs when a policy or requirement affects pregnant women unfairly, even if it applies to everyone.

Equal Opportunity Act and Fair Work Act

The Equal Opportunity laws and the Fair Work Act prohibit discrimination based on pregnancy.

In particular, the Fair Work Act protects the rights and benefits of pregnant employees. Some of those protections include ensuring that:

  • eligible pregnant employees can take flexible unpaid parental leave;
  • if a pregnant employee is unfit for work due to a pregnancy, they can take unpaid special parental leave;
  • If a pregnant employee can work but their current job is not safe, they have two options. They have the option to transfer to a safe job or take time off.

If an employee cannot use the benefits mentioned, the employer may be responsible for discriminating against pregnant employees.

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Options for discriminated employees

An employee can file complaints with the Australian Human Rights Commission or the Equal Opportunity Commission free of charge.

For issues related to employment discrimination, employees can submit claims to the Fair Work Commission.

What is not discrimination because of pregnancy?

Despite laws that protect pregnant women, certain actions towards pregnant employees are not discrimination.

For example:

  • an employer doesn’t hire a pregnant woman due to potential risks to the health and safety of other employees.
  • a pregnant employee works at an animal shelter. The employee had to stop working when she became pregnant due to the risk of coming into contact with cats. The shelter was dangerous for the woman and her unborn child because of the risk of getting certain medical conditions.

In these cases, the employer may be justified in refusing to hire or bring the pregnant employee’s employment to an end. This is because the employment could cause serious harm to the employee and the unborn baby.

These exceptions only apply in certain situations and not always in every case.

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Tips on how to avoid pregnancy discrimination

The following tips can help employers avoid pregnancy discrimination:

  1. employers must treat pregnant employees equally and make adjustments to ensure their health and safety.
  2. allow pregnant employees to have flexible work hours, including up to six weeks of unpaid time off before childbirth.
  3. pregnant workers can take unpaid leave if they can’t work due to pregnancy-related illness or miscarriage after 12 weeks.
  4. allow a pregnant employee to transfer to a safe job or allow them to take no safe job leave if it isn’t safe for a pregnant employee to continue in their normal job.
  5. employers must be aware that it is illegal to discriminate against an employee based on their pregnancy status. This includes not taking adverse action against a person because of their pregnancy.
  6. if a decline in an employee’s performance is not related to pregnancy, a performance management process can be started. However, it should be ensured that a non-pregnant employee would be treated the same under similar circumstances. Even if the process is correctly followed, this course of action does present a risk for employers.
  7. provide training and information to all staff about pregnancy discrimination and the rights of pregnant employees. This can help create a supportive and understanding work environment.
  8. have clear policies and procedures in place to handle pregnancy-related issues. This includes a process for employees to report any discrimination they experience or witness.
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Case law examples

In Ucchino v Acorp Pty Limited, Ms Ucchino claimed that her employer took “adverse action” against her. The employer attempted to change her employment status from full-time to casual and subsequently terminated her employment. She alleged these actions were taken because she became pregnant. She told her employer she was pregnant and needed time off work to look after her children over Christmas break.

The court found that:

  • the employer’s actions prevented Ms. Ucchino from performing her duties.
  • Ms Ucchino asked her employer if she could bring her kids to the childcare centre during school holidays. However, her employer said no to her request. As a result, she decided to ask for time off without pay.
  • upon her return to work, her employer assigned her as a fill-in assistant.
  • Ms Ucchino was told that her job would change to casual. Additionally, her salary would be reduced and she would no longer receive paid sick days or vacations.

The court ruled that Ms Ucchino’s termination was due to her pregnancy and family responsibilities. No one had discussed procedural issues with her previously. Additionally, there was no evidence indicating that the discrimination was not the primary factor leading to her termination.

As a result, the court ordered the respondent to pay Ms Ucchino $5,500 as a penalty and $8,956.61 for loss suffered.

In Sagona v R & C Piccoli Investments Pty Ltd & Ors, the employee was employed as a photographer for over 12 years with a small family-run business. She claimed that her employer forced her to resign due to her pregnancy. She had informed her employers that she was 10 weeks pregnant and intended to take maternity leave.

The court found that the applicant was forced to resign due to her employers. That behaviour was directly related to her pregnancy. They also demanded that she work additional hours and refused to allow her to work in her usual role or alternative duties. It also included refusing to consider her return to work on a part-time basis.

As a result, the court ordered the respondents to pay the applicant a total of $61,000 as a penalty. The employee received $164,097 for loss suffered and $10,000 for distress, hurt, and humiliation.

In Edwards v Forest Lake College, Ms Edwards claimed that she was discriminated against. She said the discrimination had been by Dr Nancy Hillier and Educang Limited, operators of Forest Lake College. Further, the termination was on the grounds of pregnancy, parental status, and family responsibilities.

She claimed that the school dismissed her from her part-time position as Registrar. Furthermore, she stated that they denied her a comparable position after she became pregnant with her second child.

Dr Hillier and Educang Limited denied the claims. They stated that they changed the Registrar’s position to full-time for operational reasons. They also mentioned that Edwards was not a good fit for the role due to personality and performance problems. They also claimed that they offered Edwards an alternative position as a debtor’s clerk, which she refused.

However, the tribunal found in favour of Edwards. They discovered that she faced discrimination due to her pregnancy, parental status, and family responsibilities. The decision to switch to full-time was because of a bad attitude towards Edwards’ pregnancy and family situation.

They also found that the respondents did not offer Edwards a comparable position, but a junior role with significantly less pay and status. As a result, the respondents were ordered to pay Edwards $47,250 in compensation and to provide a copy of the reasons for the decision to every member of the board of Educang Limited.

In Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2), Ms Irvine claimed that her termination was due to her pregnancy. She said that her employer had denied her maternity leave rights. The employer argued that her termination was because of her assertiveness and the economic downturn.

Ms Irvine had formally notified her employer of her intention to take unpaid maternity leave. Soon after, her boss brought up new concerns, like changing her pay and asking for proof of health coverage. Later, another Respondent requested a medical certificate confirming Ms Irvine’s pregnancy and her fitness to work, implying an intolerant attitude towards pregnant employees.

Two weeks after giving notice of her intention to take maternity leave, Ms Irvine was informed of the termination of her visa and employment. This was allegedly due to the economic downturn. The court said the employer thought they had to keep paying her while she was on maternity leave. This was the real reason for termination.

The court ruled that they terminated her due to her pregnancy. The employer was found guilty of discrimination, in breach of section 15 of the Act.

The court ordered the employer to pay Ms Irvine $2,650 for sexual harassment and $53,047.60 for unlawful discrimination. The total award for pregnancy discrimination was $53,047.60.

Key takeaways

  • pregnancy Discrimination is defined as the unfavorable treatment of a pregnant employee due to her pregnancy.
  • the article outlines the governing laws on pregnancy discrimination, including the Sex Discrimination Act 1984 (SDA), Equal Opportunity Act 1984, Fair Work Act 2009, and Anti-Discrimination Act 1991.
  • these laws prohibit discrimination based on a person’s sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, pregnancy or potential pregnancy, or breastfeeding status.
  • memployers need to treat pregnant employees the same as other employees, allow flexible work arrangements, provide unpaid special parental leave, and ensure a supportive and understanding work environment.
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Frequently asked questions

Pregnant employees should inform their employer about their pregnancy for health and safety reasons. This is a good idea, even though it is not mandatory.

Further, an employee can only access entitlements like parental leave if they inform their employer. The Fair Work Act requires employees to notify their employer in writing 10 weeks before commencing unpaid parental leave. If this is not possible, as soon as practicable (which may be after the leave has started).

An employer needs to take measures to safeguard the health and safety of all its employees, especially those who are pregnant. It’s important to adjust and meet the needs of pregnant workers as their requirements may change during pregnancy. This helps ensure their safety and well-being at work.

Yes, a pregnant employee can refuse to work if they think that carrying out the work would expose them to a serious risk.

This right is protected under work health and safety legislation. Employees also owe a duty to ensure their health and safety.

The Fair Work Act entitles all pregnant employees, including casual workers, to transfer to a safer job if their current job is unsafe due to their pregnancy. This applies even to those who are not eligible for unpaid parental leave.

When moved to a safer job, the employee keeps the same pay, hours, and benefits as before. The employee and employer can agree to different working hours and change them.

If no safer job is available, the employee can take ‘no safe job’ leave. This leave is paid at the base rate if the employee is entitled to unpaid parental leave under the Fair Work Act, and unpaid if they are not.

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