Grounded while pregnant, she was refused her own sick leave

What happened

Lindy Howe was a long haul (international) customer service manager with Qantas, a higher-paid cabin crew role than ordinary flight attendant. Her employment was governed largely by an enterprise agreement, EBA IV, which required a pregnant long haul flight attendant to stop flying after 16 weeks of flying while pregnant, or by the 26th week if that came first. The court said there appeared to be a sound medical reason for the rule: protecting the unborn child from ionising radiation at high altitude.

Ms Howe stopped flying on 26 February 2001. Qantas offered her ground duties as an administration clerk in its engineering department, earning about $34,000 a year, work that, on her evidence, was mostly filing and photocopying. She declined it. On 21 March 2001 she asked to use 142 days of sick leave from her accrued bank of 174 days to cover the months before her maternity leave. Qantas refused, saying pregnancy is not an illness or injury, so sick leave was not available.

While on maternity leave she asked to come back part-time, or on short haul flights, so she could care for her two young children. Qantas said no part-time customer service manager positions were available, though she was encouraged to apply again. She then asked to transfer to the role of ordinary flight attendant, where her seniority let her bid for flights that suited her family. Qantas agreed.

The claim

Ms Howe sued under the Sex Discrimination Act 1984 (Cth). She made four claims: that Qantas should have kept paying her once she was grounded; that refusing her sick leave was pregnancy discrimination; that she had been constructively dismissed because of her family responsibilities when she took the lower role; and that refusing her part-time work was indirect sex discrimination. A constructive dismissal is where an employee resigns or is pushed out because of the employer's conduct.

The legal test

Direct pregnancy discrimination under s 7(1) means treating a woman less favourably because of her pregnancy than the employer would treat someone who is not pregnant in circumstances that are the same or not materially different. Under s 14(2)(b) it is unlawful for an employer to discriminate by denying an employee access to benefits associated with employment.

The key step is choosing the comparator: the imaginary person the employee is measured against. Here Federal Magistrate Driver held that the right comparison was a Qantas employee at the same level who was not pregnant and who was not flying because of a medical condition.

Qantas also relied on s 40(1), which protects things done in direct compliance with an industrial agreement. The court read that narrowly. Grounding Ms Howe was compliance with the agreement, but what Qantas chose to do next was not.

What the court decided

The pay claim failed. A grounded employee who was not pregnant would also have been paid only the ground staff rate for ground work, so Ms Howe was not treated less favourably.

The sick leave claim succeeded. The agreement let a flight attendant who was unfit to fly through illness choose between ground duties and sick leave. Ms Howe was refused that choice only because pregnancy is not an illness. The court found this was discrimination under s 7(1) and a breach of s 14(2)(b).

The constructive dismissal claim failed. Her employment never stopped, she was encouraged to reapply for part-time work, and the transfer she asked for was granted. In the court's words, "The applicant got what she ultimately sought." The indirect discrimination claim failed for similar reasons. The court did accept, though, that an employer's refusal of part-time work can in some cases be indirect sex discrimination if it is unreasonable.

How much was awarded

Federal Magistrate Driver declared that Qantas had unlawfully discriminated against Ms Howe. Qantas had to pay special damages equal to her sick leave pay for 26 February to 15 July 2001, less sick leave accrued over that period, plus $3,000 in general damages for her distress, with interest at 10.5 per cent.

In a second judgment on 17 December 2004, the court fixed the special damages at $24,753.85 ($25,815.25 for 140 days of sick leave, less $1,061.40 of leave accrued in that time). It refused to let Qantas deduct the value of the sick leave credits she still held, moved the start date for interest to 15 July 2001, and ordered Qantas to pay her legal costs because she had been substantially successful.

What this means for you

If you are refused a benefit, such as leave you have already earned, and a colleague in the same position who was not pregnant would have got it, that may be unlawful discrimination even if your employer is following an agreement in other respects.

The law has moved since 2004. Under ss 81 and 81A of the Fair Work Act 2009 (Cth), a pregnant employee who is fit for work but should not stay in her present role must be moved to an appropriate safe job at her full rate of pay or, if there is none and she is entitled to unpaid parental leave, given paid no safe job leave. The Sex Discrimination Act now protects family responsibilities throughout employment, not only on dismissal, and the Fair Work Act lets employees request flexible working arrangements. If you are pregnant or returning from parental leave and are being offered less, consider getting advice early, because complaint time limits can be short.