The ACT Civil and Administrative Tribunal (ACAT) has delivered a precedent setting award of damages which confirms that failure to make reasonable accommodations for employees with attributes protected under anti-discrimination law can expose employers to significant legal, financial and reputational risks.

Background

The decision relates to the damages awarded to an applicant found to have been unlawfully discriminated against in their employment pursuant to Part 3 of the Discrimination Act 1991 (ACT) (Discrimination Act). The damages were awarded pursuant to s 53E of the Human Rights Commission Act 2005 (ACT).

The Applicant, at the relevant time aged in her early twenties, was a long-term employee in a management role with the Respondent. The Respondent is part of the Southern Restaurants Group, the largest KFC franchise owner in Australia, with locations in Victoria, New South Wales and the ACT.

The unlawful discrimination arose in the context of the Applicant having recently returned to work after giving birth to her first child. The Applicant made repeated requests to the Respondent for accommodations to a condition of her employment imposed by the Respondent that she always remain on site during her shift (including breaks), to allow her the opportunity to express milk in a private and safe manner.

The accommodations requested by the Applicant included a private space on the Respondent’s premises in which she could express milk or, alternatively, permission to leave the workplace during her meal breaks to express at a nearby shopping centre.

The Respondent refused all the Applicant’s requests.

In the context of seeking damages, the Applicant alleged because of her reasonable adjustments not being accommodated, she suffered an exacerbation of her pre-existing psychiatric condition (an adjustment disorder with mixed anxiety and depressed mood).

Assessment of damages

In its assessment of damages, ACAT outlined the general principles in respect of determining damages in unlawful discrimination cases, including the compensatory rather than punitive nature of those damages, before turning to how those principles applied to the unlawful discrimination suffered by the Applicant.

In assessing general damages, including those claimed by the Applicant for hurt and humiliation, ACAT considered the findings by the Tribunal at first instance on the question of liability, which were that the Respondent:

• failed to respond adequately and in a timely manner to the repeated requests from the Applicant to express breast milk in a private space;
• through adult males employed by the Respondent in senior positions, subjected the Applicant to invasive questioning about her breastfeeding requirements;
• proposed unsuitable and non-private solutions such as using the toilets or a camping tent to express milk while remaining on premises;
• failed to meaningfully assess the costs required to make any reasonable adjustments after asserting the accommodations were ‘too expensive’; and
• suggested the Applicant relinquish her management position to become a casual employee. ¹

ACAT also considered the circumstances of the matter itself, which it described as ‘serious‘, including:

• the gendered nature of the discrimination;
• the power imbalance between the Applicant and the Respondent;
• the age, inexperience and vulnerability in the context of her being a first time mother; and
• that the Respondent had the necessary resources to understand its obligations under anti-discrimination law.

In addition to the above, ACAT considered:

• the ‘significant‘ loss of ‘maternal opportunities’ afforded to the Applicant in that she was required to focus on her ‘battle‘ with the Respondent which detracted from her enjoyment of adjusting to motherhood; and
• the Applicant’s development of a ‘moderately long term and very distressing’ psychological condition because of the treatment she received from the Respondent; and
• the Applicant’s loss of pleasure and pride in the career that she had developed.

Damages and other remedies awarded

ACAT awarded the Applicant general damages in the amount of $80,000 for hurt, humiliation, loss of enjoyment, and loss of opportunity to experience breastfeeding her first child. ACAT also awarded the Applicant special damages in the amount of $10,000, which was intended to cover the costs of the Applicant’s treatment for her psychiatric condition for a period of 12 months.

In addition, the Respondent was ordered to:

• review and update workplace policies within 6 months to ensure access for employees to adequate breastfeeding facilities on site premises;
• provide training on compliance with anti-discrimination and industrial relations legislation to those in management and human resource positions.

ACAT also noted that as the Respondent had issued an apology to the Applicant, it was not necessary or appropriate to make an order to this effect – the implication being that had the Respondent not already apologised to the Applicant, ACAT would have been minded to make an order to that effect.

Lessons for employers

This decision reinforces for employers in the context of their obligations under anti-discrimination laws that:

• accommodations, including breastfeeding related adjustments are an anti-discrimination obligation, not a discretionary workplace benefit;
• employers should take active steps to engage with requests for accommodations that are protected under legislation, and cannot rely on degrading and insufficient solutions;
• failure to implement reasonable accommodations is not only a discrimination risk, but a potential psychological hazard/work health and safety risk;
• proactive engagement, timely responses, and respectful treatment of requests for reasonable accommodations are essential to mitigating legal and reputational risk;
• courts and tribunals will look at a wide range of factors in assessing damages where unlawful discrimination is found to have occurred; and
• the upwards trend in the damages awarded in unlawful discrimination that we have seen over the previous decade is continuing, making compliance with their obligations even more important.

We recommend that employers continue to:

• audit their anti-discrimination policies and procedures to ensure they provide for practices that are consistent with their obligations under anti-discrimination; and
• train managers and HR personnel on lawful responses to accommodation requests.

¹ Complainant 202258 v Southern Restaurants (VIC) Pty Ltd [2023] ACAT 57