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Home | About Us When can morning sickness be considered  a  disability? Monday, 30th March, 2015, by Loran McDougall In today's Workplace Bulletin: VCAT finds severe morning sickness is a disability Dear Reader, In a previous bulletin, we looked at how you can meet your legal obligation to accommodate employees with a disability. Under federal and State/Territory legislation, a disability or impairment is a protected attribute. This means that if you disadvantage an employee based on a disability or impairment, you may be liable under anti-discrimination legislation. That’s why it’s so important to know what is classified as a disability under the legislation. Disability includes: physical illnesses; mental illnesses; and behaviour that is a symptom or manifestation of the disability, e.g. an employee being late for work due to medication that causes them to sleep in. A recent decision by the Victorian Civil and Administrative Tribunal (VCAT) has also confirmed that severe morning sickness is a disability for the purposes of the Equal Opportunity Act 2010 (Vic). Read on for the details. Until next time, Loran McDougall Editor Workplace Bulletin ....................................................................................Advertisement...................................................................................... Click here to discover a simple way to make sure you implement fair and effective strategies for your employees with family responsibilities VCAT finds severe morning sickness is a  disability by Charles Power Editor-in-Chief, Employment Law Practical Handbook Last week, VCAT found that a pregant employee was discriminated against when her employer failed to make reasonable adjustments to accommodate her severe morning sickness. The employee had been diagnosed with a severe form of morning sickness called Hyperemesis Gravidarum and, as a result, suffered from migraines, back pain, ankle pain and foot pain. She alleged that her employer had directly discriminated against her by making adverse comments relating to her pregnancy, sick leave, lifting boxes, sitting down at work and toilet breaks. Direct discrimination occurs when an employer (or an agent of the employer) treats an employee less favourably because they have an attribute that is protected under relevant legislation. While, in this case, the Tribunal did not uphold all of the employee’s direct discrimination claims, it did find that the employer had directly discriminated against the employee under Victoria’s Equal Opportunity Act 2010  because its agent had: made adverse comments about her toilet breaks; and responded to the employee’s absences with text messages saying, “I’m f—king sick of this” and “You better f—king come in”. The employee also alleged that the employer had indirectly discriminated against her by imposing requirements in relation to moving boxes, standing during shifts, taking breaks at certain times, refraining from taking sick leave, working a 30-hour week and taking short breaks. Indirect discrimination occurs when an employer imposes a condition or requirement: with which an employee cannot comply because of an attribute protected under the legislation; and that is unreasonable in all the circumstances. In this case, the Tribunal found that the employer had not imposed any such conditions or requirements. What you can take from this case If one of your employees is affected by morning sickness, remember: physical impairment, gender and pregnancy are all protected attributes under anti-discrimination legislation; severe morning sickness is considered a disability; and anti-discrimination legislation requires you to take reasonable steps to accommodate pregnant employees in the workplace. Regards, Charles Power Editor-in-Chief Employment Law Practical Handbook Like the Workplace Bulletin? Check out our other free bulletin: Health & Safety BulletinAll the latest tips, tools and strategies you need to help you stay on top of health and safety laws. Click here to sign up now. Please whitelist the Workplace Bulletin to make sure you get every edition delivered to your inbox. The information in this email is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipient, please return the message to the sender and delete it from your records. All content is © 2007-2015 Portner Press Pty Ltd All Rights Reserved. Disclaimer: We research our recommendations and articles thoroughly, but disclaim all liability for any inaccuracies or omissions found in our publications. Click here to view our Privacy Policy and Terms and Conditions. Queries: For general enquiries, email cs@portnerpress.com.au or call 1300 782 911. Workplace Helpdesk: Paid subscribers to the Employment Law Handbook can ask our experts for advice. Syndication: To republish a Workplace Bulletin article, please email cs@portnerpress.com.au for information. Workplace Bulletin ISSN 1836-117X Portner Press Pty Ltd 96-98 Bridport Street Albert Park VIC 3206 Australia