A recent decision of the Victorian Civil and Administrative Tribunal serves as a reminder about managing redundancy issues involving pregnant employees.

In Stern v Depilation & Skincare Pty Ltd (Anti-Discrimination) [2009] VCAT 2725 (22 December 2009), a pregnant employee's request to reduce her hours to part-time, due to morning sickness, was treated by her employer as a request to permanently change her employment status from full-time to part-time.

After asking the employee to make her request in writing, the employer refused it because there were no part-time positions available. The employer asked other employees if they would change their own working arrangements to accommodate the pregnant employee, but they refused.

The employer proposed other arrangements to assist the employee including allowing longer breaks and "power naps", having a co-worker take over one of her shifts, and avoiding late bookings. The employer also proposed a change in the employee's working hours to one 12 hour and two 8 hour shifts a week. The employee provided a medical certificate stating that she could not work 12 hour shifts and should not work more than 8 hours. The employer changed the employee's working hours in accordance with the medical certificate.

Following a downturn in its business, the employer made the employee redundant. The employer had initially determined that a full-time position was no longer required by the business for operational reasons. However, after a part-time employee resigned, the employer decided to make one part-time position redundant. As the employee was at that time working part-time hours, the employer decided to terminate her position.

Deputy President McKenzie found that the employer had unlawfully discriminated against the employee by unilaterally changing her employment status to permanent part-time, instead of regarding the reduction in her working hours as a temporary change. The employee's changed employment status was a substantial factor in the minds of the employer when making her position redundant. DP McKenzie said that "[p]regnancy was therefore a substantial reason, an actuating factor in the making of the decision to choose her for redundancy". DP McKenzie also noted that the employee had suffered discriminatory treatment in that the employer had required her to make requests for alternative working arrangements in writing while other employees, who were not pregnant, were not so required.

DP McKenzie ordered the employer to pay the employee $6,607 in compensation.

Lessons for Government

State and Commonwealth Government employees are required to adhere to the Values that apply to them and invariably those Values include a commitment to workplace diversity and workplaces free from discrimination.

In managing issues relating to pregnancy and discrimination in the workplace, we recommend the following steps:

  • There are laws which deal with workplace discrimination and it is important to carefully consider all requests for flexible working arrangements and to get advice before refusing a request
  • When considering restructuring or redundancies that will impact on women who are pregnant or on maternity leave, appropriate consideration should be given to possible indirect discrimination (where the action appears on its face to be neutral) as well as direct discrimination. You should also consider your obligations under the National Employment Standards to re-employ a parent who has been on parental leave
  • Complaints must be taken seriously and employees should be directed to appropriate policies and contact officers, and
  • Provide management and employees with refresher training.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.