Forced maternity leave discriminatory

Cases

Forced maternity leave discriminatory

A pregnant child care worker who was directed to go on maternity leave because she had a back injury has been held to have been discriminated against on the grounds of pregnancy and impairment.

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A pregnant child care worker who was directed to go on maternity leave because she had a back injury has been held to have been discriminated against on the grounds of pregnancy and impairment.

The above decision of the Victorian Anti-Discrimination Tribunal highlights the need for employers to be cautious when making assumptions about an employee’s apparent inability to do a job because they are pregnant and/or have a disability (Kogoi v East Bentleigh Child Care Centre, No 38 of 1995).

The complainant worked at the employer’s child care centre for over four years before becoming pregnant.

During the early stages of her pregnancy she experienced back pain caused by repetitive lifting of infants.

The complainant asked if she could work a four day week on the basis that pregnant staff had been allowed to do so in the past.

The complainant was told that she could not move to a four day week because it would affect the continuity of care in the area she worked. The complainant then asked if she could be transferred to another area which required less frequent lifting.

The complainant produced medical certificates from her osteopath and doctor supporting her claim that she be moved to a work area which required less frequent lifting. The manager, after briefly looking at the certificates, said that it would still be unsafe for the complainant to continue working.

The complainant was subsequently told that she should go on maternity leave immediately because it was unsafe for her to remain at work. The complainant reluctantly agreed.

Employer’s submissions

In the proceedings before the Tribunal, the employer argued that the complainant’s inability to lift children meant that she was unable to perform the inherent requirements of the job.

The employer also argued that it was obligated to ensure compliance with occupational health and safety regulations, and that in view of the medical advice regarding lifting restrictions and expectations that back problems would increase with pregnancy, it had acted responsibly by requiring the complainant to take maternity leave.

Tribunal’s findings

The Tribunal held however, based on the medical evidence, that the complainant was capable of remaining in employment in the area she had requested to work in. In failing to allow the complainant to move, the Tribunal held that the employer had acted discriminatory.

The Tribunal further held that the employer’s failure to allow the complainant to reduce her working week from five to four days a week was discriminatory.

The Tribunal noted that, due to the high turnover of staff at the centre, retaining the complainant would have achieved greater continuity.

The Tribunal also dismissed the employer’s submission that it’s actions were required by relevant health and safety regulations.

The complainant was awarded $12,706.20 damages as compensation for lost wages.

 

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