Jordan v North Coast Area Health Service

REASONS FOR DECISION 1 For the reasons we give below, we find Ms Jordan's complaint of sex discrimination is substantiated: she is successful in that complaint. We find that Ms Jordan's complaint of victimisation is not substantiated: she is not successful in that complaint. What happened? 2 In 2002 Ms Kylie Jordan worked as a blood collector at Lismore Base Hospital. She collected blood from patients of the hospital as required by the Northern Rivers Pathology Service (NRPS), a part of what was then the Northern Rivers Area Health Service and was since renamed the North Coast Area Health Service (NRAHS). 3 In about January 2002 Ms Jordan became pregnant. She continued performing her duties and in July 2002 she asked the operations manager of NRAHS, Mr David Newell, for what she called 'light duties' because, she told him, she was finding it difficult to perform her duties due to her late stage pregnancy. 4 By August Ms Jordan was continuing to perform her duties. She had heard nothing in response to her request although, as we describe below, Mr Newell had initiated inquiries as to what could be done. In August Ms Jordan repeated her request, this time to her immediate supervisor, Ms Dianne Miller. Ms Miller offered Ms Jordan two weeks of office work in September but Ms Jordan rejected this as being too late; she said she needed immediate relief from her duties. 5 On 7 August Ms Jordan repeated her request to Mr Newell, this time in writing. She requested that she be given light duties "due to my advanced state of pregnancy". The next day Mr Newell replied in writing, acknowledging "the increasing difficulty you are finding in undertaking your substantive specimen collection position in the hospital wards". He went on to say that "there are no vacant positions available for you to temporarily fill", and that there were no funds for a relief position in the laboratory. Mr Newell wrote to Ms Jordan that "if you are unable to undertake your substantive duties [I suggest] you utilise appropriate annual, sick and long service leave or leave without pay". 6 At the same time, as we describe below, Mr Newell initiated inquiries as to what suitable duties were available for Ms Jordan in the NRAHS beyond the pathology service. 7 On 13 August Ms Jordan took a combination of annual leave and long service leave. On 28 August Mr Newell again wrote to Ms Jordan, saying again "there is currently no alternative position that would offer you 'light' duties". The letter offered Ms Jordan a reduction in the number of hours she would be required to perform her normal duties of ward blood collections, and again suggested she take leave if she was unable to perform those duties. 8 Ms Jordan did not return to her duties at that time, but remained on the combination of annual leave and long service leave until 30 September, when she commenced maternity leave. Her baby was born in October, and she returned to her normal blood collecting duties in December 2002. What is complained of? 9 In November 2002 Ms Jordan complained to the Anti-Discrimination Board about Mr Newell's rejection of her request for light duties. The President of the Anti-Discrimination Board accepted the letter as a complaint of discrimination. 10 In March 2003 Ms Jordan complained to the Anti-Discrimination Board that, through its officers, the NRAHS had engaged in particular conduct towards her. It was implicit in Ms Jordan's letter of complaint that the NRAHS's alleged conduct was connected with her having made a discrimination complaint, and the President of the Anti-Discrimination Board accepted the letter as a complaint of victimisation (see Jordan -v- Northern Rivers Area Health Service [2004] NSWADT 207). 11 We deal first with the complaint of discrimination. This complaint requires us to decide whether, in not meeting her request for light duties, the NRAHS engaged in unlawful discrimination. 12 The NRAHS has not contested the operation in the circumstances of s53 of the Anti-Discrimination Act 1977, rendering it liable for the conduct of its employees. Discrimination complaint: what is the law? 13 Ms Jordan's complaint is of discrimination on the ground of a characteristic of her sex. That characteristic is what, for convenience, we call 'late stage pregnancy'. Pregnancy at any stage - or even only in prospect - is a characteristic of a woman's sex, a fact put beyond doubt by s24(1A) of the Anti-Discrimination Act 1977. Ms Jordan does not say that the simple fact of her pregnancy was the reason she was discriminated against, but that it was the fact that she was in an advanced stage of pregnancy. 14 Ms Jordan's complaint is that the conduct of the NRAHS contravened the Anti-Discrimination Act 1977 in one of two ways. It was either less favourable treatment of her than of a man in the same or similar circumstances (s24(1)(a): direct discrimination), or it obliged her to comply with a requirement with which a substantially higher proportion of men could comply, which was unreasonable in the circumstances, and with which she could not comply (s24(1)(b):indirect discrimination). 15 Ms Jordan's complaint is of discrimination in employment: she says that she was discriminated against in the terms or conditions of her employment, and /or by being subjected to a detriment (s25(2)(a) and (c)). 16 It is helpful to recall the nature of the question that is actually being asked by a complaint. The question is necessarily cast in terms of the legislation that has been designed to answer it, and so is framed in terms of comparators, requirements and circumstances. But the reasoning required by the Anti-Discrimination Act 1977 is merely a formal way of asking the simple question an applicant poses by their complaint: 'Why was I treated as I was? Was it because of, in this case, my late stage pregnancy, or was it because of some other reason?'. This has been characterised as the 'but why' test (to be distinguished from the 'but for' test). In a discrimination claim the relevant issue is "the reason why the discriminator acted" (Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 per McHugh and Kirby JJ at [148]; and see Gummow, Hayne and Heydon JJ at [236]). As we go through the steps required of us by the terms of s24, we are, effectively, asking "why was Ms Jordan treated as she was?". What happened? 17 We agree with submissions for NRAHS that there is very little factual dispute in this matter. Consistently with this view, the submissions for Ms Jordan were directed principally to questions of law and the application of law to the facts. Most of the relevant evidence relates to the principal factual dispute: the reasonableness of the requirement. 18 The treatment of Ms Jordan that she complains of was NRAHS's advice to her, through Mr Newell and Ms Miller, that there were no, or only limited, light duties available. Was there direct discrimination? 19 To determine whether this treatment was direct discrimination we must compare the way Ms Jordan was treated with the way a 'comparator' was or would have been treated in the same or materially similar circumstances. What, then, are the relevant 'same or materially similar' circumstances in which the comparator must be placed? 20 Ms Jordan was a full time permanent employee of the NRAHS. The treatment of which she complains related to her collecting blood from the wards. Her request was for alternative duties, 'lighter' in nature than the duties of her job. The reason she made the request that resulted in the treatment she complains of was that collecting blood from the wards caused her both physical difficulty and concerns about her future health. These are, in our view of the evidence, the relevant circumstances for purposes of making the necessary comparison. 21 It is necessary to distinguish matters that are 'circumstances' and so are part of a comparison, from matters that are integral to the status that is said to be the ground for discrimination and so are excluded from a comparison (see Purvis per McHugh and Kirby JJ at [113] - 134]; per Gummow, Hayne and Heydon JJ at [221] - [231]). Ms Jordan had concerns not only about her future health, but also about the health of her unborn child. The former concern is not one that is peculiar to her late stage pregnancy, and could occur in circumstances where a person is not pregnant at all; it is properly part of the circumstances in which a comparison is made. The latter concern, however, is one that is integral to her late stage pregnancy; it must be excluded from the circumstances in which a comparison is made. 22 The comparison should, therefore, be made between NRAHS's treatment of Ms Jordan, and NRAHS's treatment of man in the circumstances we set out, or circumstances that are materially similar. 23 The comparison must be made with a man, not with a person who is 'not pregnant'. This comparison is required because the Anti-Discrimination Act 1977, although it recognises that pregnancy can be a characteristic of being a woman in s24(1A), continues to require a comparison to be made with a "person of the opposite sex" (s24(1)(a)). This is different from the reasoning required by, for example, s7 of the Sex Discrimination Act 1984 (Cth) where pregnancy is a ground of discrimination separate from sex and so the comparator is a person who is not pregnant, and by ss6 and 8 of the Equal Opportunity Act 1995 (Vic) where pregnancy is an attribute separate from sex and so the comparator is a person who does not have that attribute. 24 Ms Jordan has not identified any employee who is an actual comparator, that is, a man in the same or materially similar circumstances. She identified a number of women in the same or materially similar circumstances - ie they were NRAHS employees who had blood collection duties and were pregnant - but they are not relevant to the reasoning process required by s24(1)(a). 25 In the absence of an actual comparator, it is necessary to consider how a man would have been treated, that is, to consider the position of a hypothetical comparator. In this case, therefore, Ms Jordan's complaint is, in terms of the Anti-Discrimination Act 1977, that NRAHS treated her less favourably than it would have treated a male employee whose duties were to collect blood on the wards, and who sought alternative duties because he could not perform the duties without physical difficulty and concerns about his future health, and that it did so on the ground that she was in late stage pregnancy. NRAHS submits that this argument is misconceived. 26 In a hypothetical exercise such as this, the reasoning is not the sequential inquiry into, first, differential treatment and, secondly, causation, described in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [45]. Rather, the two steps conflate into a single inquiry (Edwards v Bourke Shire Council [2005] NSWADT 9 at [11]). Only by determining the ground for NRAHS's treatment of Ms Jordan will we be able to say how, hypothetically, a man would have been treated in the same circumstances. 27 There is no direct evidence in this matter that NRAHS's refusal of alternative duties to Ms Jordan was on the ground, even in part, of her late stage pregnancy. There is no evidence of any representation having been made to that effect, and it has been denied by Mr Newell. Ms Jordan submits however that there is evidence from which it can be inferred that NRAHS's treatment of her was, at least, in part on the ground of her late stage pregnancy. 28 Ms Jordan relies on the fact that NRAHS did provide 'light duties' or 'restricted duties' to employees when 'required by law', usually to employees who were returning to work after a workplace injury. Ms Jordan submits that NRAHS treated non-pregnant employees who could not perform their duties differently from the way it treated her, the only difference being that she was pregnant. On this basis, Ms Jordan submits that "it is clear that the difference is pregnancy and that was therefore the cause for the actual treatment". 29 In short, Ms Jordan points to other, non-pregnant NRAHS employees whose requests for alternative duties were met, and says that because the difference between their circumstances and hers was that she was pregnant, it should be inferred that her request, which was essentially to the same effect as theirs, was refused because of her pregnancy. 30 The inference cannot be drawn. It is not supported by the evidence. As Ms Jordan acknowledges, the non-pregnant employees who were doing alternative duties were usually doing so under a statutory entitlement arising from a work-related injury. It is not possible to infer from the different ways she and they were treated a reason for the way she was treated. It is only possible to say that the reason for the way they were treated was not present in her situation: she was not exercising a statutory right to return to work on light duties after a work-related injury. 31 Even if the inference is available, it is not persuasive. NRAHS has provided evidence of other, more probable and innocent (ie not unlawfully discriminatory) explanations for their treatment of Ms Jordan (Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 at [127]). Mr Newell specifically denied that Ms Jordan's pregnancy was a ground for his decision. Mr Newell's letters to Ms Jordan at the time explained that there were no positions available and no funds to create a position. We are satisfied that these were the real reasons why Ms Jordan's request was not met. Whether those reasons were reasonable is not an issue under s24(1)(a); it is enough that they were the grounds for the treatment and that her late stage pregnancy was not. 32 Why was Ms Jordan treated as she was? We are satisfied that the reason for refusing her request was not her being pregnant. The conduct of which she complains does not, therefore contravene s24(1)(a) of the Anti-Discrimination Act 1977. The answer as to 'why?' may, however, be because she was unable to comply with a requirement. Was there indirect discrimination? 33 An alternative way in which NRAHS's conduct could contravene the Anti-Discrimination Act 1977 is if Ms Jordan had to, but could not, comply with an unreasonable requirement that substantially more men than women could comply with (s24(1)(b)). The conduct Ms Jordan complains of will contravene s24(1)(b) if the evidence satisfies us that: i) NRAHS required Ms Jordan to comply with a requirement ii) Ms Jordan was not able to comply with that requirement iii) a substantially higher proportion of men could have complied with that requirement. iv) the requirement was not reasonable having regard to the circumstances. 34 Ms Jordan says that was the case. 35 We are obliged to consider the evidence and make a finding as to the actual requirement or condition, if any (Australian Iron & Steel v Banovic (1989) 168 CLR 165 at 185). It is open to us to formulate the requirement, and to identify a requirement even if it was not explicit (Bradley State of New South Wales [2002] NSWADT 11 at [56] citing Waters v Public Transport Corporation (1991) 173 CLR 349). The requirement should be expressed in terms that enable the necessary comparison to be made between the ability of women in late stage pregnancy and of men to comply with it (see Hunter, R., Indirect Discrimination in the Workplace The Federation Press Sydney, 1992 at 199), and should be expressed in terms that make clear that it is, in fact, a requirement, because there are consequences for non-compliance (Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 at [11]). 36 Ms Jordan's duties were to collect blood from hospital patients. In paragraph 5 above we describe the request she made and the terms in which it was answered. It is implicit in the position taken by Mr Newell, on behalf of NRAHS, that Ms Jordan was required to carry out the very duties she said she was not able to carry out (subject to clarifying 'not able', which we do below). This is what Ms Jordan submits: that the requirement in question was 'that she perform ward collections of blood'. Mr Newell spelt out the consequences of her not complying with the requirement: she would have to keep working or take leave. The requirement 37 The requirement therefore is more refined than was submitted by Ms Jordan, and should be expressed as: 'in order to continue in active full-time employment with NRAHS, blood collection workers on wards must carry out their normal duties'. 38 We have said 'active full time' in order to avoid a suggestion that being on paid leave is nevertheless a form of 'full time' employment: Ms Jordan complains that the effect of the requirement was to prevent her from actually being at work. 39 NRAHS submits that whatever the precise formulation, the requirement cannot be of this nature: NRAHS submits that the requirement relied on for purposes of establishing a claim of indirect discrimination must be separate from the requirement to perform the job itself. Ms Jordan submits that authorities to that effect should not be followed. We note that in fact this point, although possibly fatal to Ms Jordan's application, was not raised by the NRAHS at the inquiry, or in its application in 2004 to have Ms Jordan's application summarily dismissed (see Jordan -v- Northern Rivers Area Health Service [2004] NSWADT 207). It was in fact the submissions for Ms Jordan that raised the issue met it in advance; the submissions for NRAHS then addressed the issue in reply. 40 The issue can be put in these terms: for a complaint of indirect discrimination in employment, must the requirement complained of be a requirement that has to be complied with in order to carry out the duties (ie, preconditional or collateral), or can it be a requirement to carry out the duties (ie integral)? 41 In saying that the requirement to do the work cannot be a requirement for purposes of indirect discrimination, NRAHS does not offer an alternative formulation of the requirement in this case. We agree that none is possible in the circumstances. Any re-formulation of the requirement is merely going to detail aspects of the job itself: to stand, bend, walk, draw blood and so on. It was the duties that Ms Jordan could not do, and it was the requirement that she do the duties that she complains of. 42 We agree with Ms Jordan that in this case the requirement is a requirement to carry out her duties - what we will call an 'integral' requirement. The issue raised by NRAHS therefore has to be resolved: is such a requirement one that is covered by s24(1)(b)? 43 The NRAHS relies on a British decision Clymo v Wandsworth London Borough Council [1989] ICR 250 which is at odds with an earlier decision, Home Office v Holmes [1984] ICR 678. 44 In Holmes the UK Employment Appeals Tribunal, dealing with a provision to the same effect as s24(1)(b), were reviewing a finding that the obligation on an employee to work fulltime "was, indeed, a condition or requirement within the terms of the Act . . . it was an essential term of her engagement because unless she went on working fulltime she would not be allowed to continue her job" (at 681). It was submitted to that Tribunal that that finding was wrong, and that the requirement "is the whole job. It is not a term of the job. It is the job. Part-time work ... is no a variant of fulltime work. It is a different job. "Requirement' and 'condition' are terms which properly regarded in their statutory context, denote some hurdle, qualification or obstacle placed in the way of the employee" (at 682-3). 45 The Tribunal rejected this submission, saying "words like 'requirement' and 'condition' are plain, clear words of wide import fully capable of including any obligation of service whether full or part time, and we see no basis for giving them a restrictive interpretation in the light of the policy underlying the Act" (at 683). 46 The approach in Holmes was approved by the Northern Ireland Court of Appeal in Briggs v North Eastern Education and Library Board [1990] IRLR 181, where a requirement of a teacher that she supervise after school hours was held to be a 'requirement' for purposes of indirect discrimination. The Court of Appeal explicitly agreed with Holmes and chose not to follow Clymo on this issue (at para 27, p186). The approach the Court of Appeal took was that an employer who wants to defend a discriminatory requirement that is an essential part of the job should argue that it is justifiable - 'reasonableness' under the Anti-Discrimination Act 1977. 47 Clymo was decided shortly before Briggs. It effectively agreed with the argument that had been rejected in Holmes. The Tribunal distinguished two situations: when what appears to be a requirement of a job can be varied and the job can still be done, and when the requirement is such that the job cannot be done at all if it is not complied with; "in between there will be many gradations" (at 262). In the latter case the requirement could not, they said, be a 'requirement' for purposes of indirect discrimination. 48 In 1999 it was submitted to a hearing that the decisions of Holmes, Clymo, and Briggs were in "apparent conflict" (Links London Ltd v Ducasse [1999] UKEAT_677_99_3009) but the Holmes / Briggs approach was accepted in Britain without argument as recently as 2004 in Ministry of Defence (Royal Navy) v Macmillan [2004] UKEAT__0003_04_2109 at [29]. 49 In Australia the Clymo position was argued for in French v Gosford City Council [2003] NSWADT 273, where the merits of the argument were not addressed and, on the facts, the requirement was held in any event to be separate from the nature of the job (at [111]). The Clymo position was again argued for in Howe v Qantas Airways [2004] FMCA 242 but the submission was not directly addressed in the decision, which proceeded on the contrary basis, that the requirement need not be separate from the job itself (eg at [110]). In Reddy v International Cargo Express [2004] ADT 218 it was accepted without argument that a 'full-time' work requirement was a requirement that could attract a claim of indirect discrimination (at [56]). 50 It may be that the Clymo debate is particular to a requirement of full-time work, whereas the requirement in this case is one of 'work normal duties'. We do not see that this creates a difference in principle when attempting to characterise the 'requirement' for purposes of s24(1)(b). The balance of the decisions we have set out above, none of which is binding authority on us, is towards treating a requirement that is integral to the job as a 'requirement' for purposes of s24(1)(b). 51 As well as relying on Clymo, NRAHS submits that "Parliament could not have intended to afford person protection from discrimination when they are not able to perform (by reason of the development of a particular attribute) the job they were employed to do". Hunter argues, however, (p198) that there seems no basis in the legislation for saying that the impugned requirement must be separate from the nature of the job. Hunter makes the same argument as did the Northern Ireland Court of Appeal in Briggs, and with which we agree, that the question of whether the requirement is one that is so intrinsic to the job that the job cannot be performed without it, is a question that properly arises at the 'reasonableness' stage of an indirect discrimination inquiry. 52 Whether a person is afforded protection from discrimination when they are not able, by reason of a particular attribute, to perform the job they were employed to do is a question of the reasonableness of the requirement, in the circumstances, that they perform the job. In our view neither authority nor Parliamentary intention leads to the relevant requirement having to be separate from the requirement to perform the job. The legislation does assume, however, that that requirement is reasonable, and insisting on compliance with it can only be unlawfully discriminatory if it is shown to be not reasonable in the circumstances. 53 We proceed, therefore, on the basis that the requirement of which Ms Jordan complains equates, effectively, with the requirement to perform her normal duties, and the real issue is as to its reasonableness, which is considered below. Able to comply? 54 The requirement was one with which Ms Jordan could comply, but only with difficulty. Although the Anti-Discrimination Act says that for an indirect discrimination complaint Ms Jordan must have been 'not able to comply', it is sufficient if she was able to comply only by suffering some appreciable disadvantage or detriment (Bradley -v- State of New South Wales (No.2) [2003] NSWADT 94 at [53]). We note that in various contexts 'unable' is not equivalent to 'impossible'(see authorities referred to by Heydon J at paras [56]-[59] of Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298). 55 In this case, although it was not impossible for her to comply, Ms Jordan was able to comply only through suffering personal discomfort and the anguish that she was putting her health and that of her child at risk. We accept this on the basis of her own evidence, which was not contested. Indeed, Mr Newell concedes that he was aware at least that Ms Jordan would find it difficult to carry out her duties as her pregnancy progressed. We are satisfied that Ms Jordan was 'not able to comply with the requirement' within the meaning of the Anti-Discrimination Act 1977. 56 We have identified a requirement with which Ms Jordan was obliged to comply but could not. We are next required by s24(1)(b) to engage in an analysis to determine whether, among those who were required to carry out the duties, Ms Jordan was in a category of people substantially less able than men to do so. This involves the calculation and comparison of relevant proportions. The pool and proportions 57 The first stage is to identify all the people who had to comply with the requirement (the base group, or 'pool'). No evidence is necessary to establish this: it is apparent from the facts. Just as in Bradley (No2) (at [64]), "the pool is easily defined in this case as all the people to whom the requirement or condition was directed". Thus the pool in this case is all those NRAHS employees who conducted ward collections of blood. We do not know how many were in the pool. 58 Within that pool we identify the two relevant groups and compare their rate of compliance with the requirement. The rate of compliance with the requirement is essentially a question of fact (Kumaran at [17]). As is often the case in indirect discrimination cases, no statistical evidence was tendered on the rates of compliance with the requirement by the comparator groups , in this case by men and by women in a late stage of pregnancy. 59 The desirable way, when possible, to deal with proof of indirect discrimination was clearly set out by Justice Browne-Wilkinson as he then was in Perera v Civil Service Commission [1982] IRLR 147 at 151-2 para 29: it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the USA has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of [the legislation] are satisfied. 60 This was not a novel approach at the time (see eg Price v Civil Service Commissioner [1978] 1 All ER (EAT) 1228 at 1231f), and has since been explicitly and consistently followed in the UK. 61 There will be cases when a Tribunal will be unable, without statistical evidence, to assess rates of compliance because some aspect of the case will not be within common knowledge: the fact that men, on average, are taller than women could be relied on as common knowledge without the need for evidence, but whether men, in the particular circumstances of a case, make more use of a carpool than women would be a matter requiring evidence (eg Bonella & ors v Wollongong City Council [2001] NSWADT 194). 62 In our view, when reliance on common knowledge will suffice, it is appropriate for us to proceed without the time and expense of expert evidence (see, eg, Kumaran at [21]; Finance Sector Union v Commonwealth Bank of Australia [1997] HREOCA 12 at text associated with footnotes 164 and 165). 63 In addition, not only are we not bound by the rules of evidence and, subject to the rules of natural justice, empowered to inform ourselves in such manner as we think fit, we are obliged to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case (s73(2) and (3) Administrative Decisions Tribunal Act 1997). 64 The parties having offered no evidence either way on this issue, we have, in the circumstances, relied on matters of common knowledge in assessing the rates of compliance. In coming to a view as to rates of compliance, we have accepted as common knowledge, and as not reasonably open to question, that people who are employed to do a job are able do the job until and unless inhibited by pain, discomfort or distress, that men have no particular disposition to pain, discomfort or distress, and that women in a later stage of pregnancy do have a particular disposition to pain, discomfort or distress. 65 Submissions for NRAHS, although they identified the issue of comparing proportions, did not address it. Ms Jordan, on the other hand, submitted that the proportion of women in late stage pregnancy who could comply should be compared to the proportion of non-pregnant people who could comply. This is mistaken. Consistently with the position we pointed out above in relation to the test for direct discrimination, the Anti-Discrimination Act 1977 requires a comparison to be made with the proportion of persons of the opposite sex (s24(1)(b)), not with the proportion of people who do not have the characteristic. 66 The pool of blood collection workers on wards is comprised of men and women. Relevantly in this matter, the pool can be more precisely described as comprising men, women in late stage pregnancy, and women not in late stage pregnancy. The first group within the pool to be identified for the comparative exercise is defined by the status that Ms Jordan says was the reason she was discriminated against (ie, "the complainant's group": Siddiqui v. Australian Medical Council FED No. 591/96 per Heerey J at [65]). That group comprises women in late stage pregnancy, that being a characteristic of her sex. 67 The relevant proportion of this group is that proportion who could comply with the requirement. We do not know how many such women were in the pool but, whatever the actual number, we can assume that most would not be able to comply with the requirement. While some women may not be as affected by their pregnancy in later stages as Ms Jordan was, there are clear physical reasons why most of them would not be able to comply. We cannot however assume that they all (ie 100% of them) could not comply. We are satisfied that whatever the actual number of women were subject to the requirement to carry out their duties, only a few - ie, as a proportion, something more than 0% - would have been able to comply with the requirement. 68 The other group to be identified for comparison is defined by the Anti-Discrimination Act 1977: "persons of the opposite sex" to Ms Jordan, ie men. The relevant proportion of this group is that proportion who could comply with the requirement. We do not know how many men were in the pool but, whatever the actual number, we can assume that almost all men would be able to comply. While some may have been injured and on other duties, there is no reason that follows simply from their being a man that would make a man unable to comply with the requirement. We are satisfied that whatever the actual number of men in the pool, almost all - ie, as a proportion, close to 100% - would have been able to comply with the requirement. 69 In the absence of any specific evidence on the size of the pool, we cannot calculate the size of the proportions. But the exercise required by s24(1)(b) is one of assessing relative size, not of establishing actual size. 70 However big the pool, the first proportion is substantially less than 100% because many if not most women in late stage pregnancy are not able to comply with the requirement to do the blood collection duties for which they were employed. The second proportion is close to 100% because most men are able comply with the requirement to do the blood collection duties for which they were employed. 71 We are therefore satisfied that of those to whom the requirement was directed, the proportion of men able to comply with the requirement was substantially higher than that of women in the later stages of pregnancy. Not reasonable? 72 A finding of unlawful discrimination under s24(1)(b) is possible only if a requirement is shown to be not reasonable. Certainly a requirement that in order to continue in active paid employment a blood collection worker must carry out their normal duties, should be approached on the basis that it is, on its face, reasonable. Circumstances may reinforce its reasonableness, and other circumstances could result in its being seen, on balance, as not reasonable. The issue almost purely a matter of evidence. 73 In evaluating the requirement we must consider the nature and extent of the discriminatory effect of the requirement against: i) the reasons for the requirement including any commercial considerations ii) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis, and iii) whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory (Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 at [65], and we note Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1 at [30-41]. 74 The requirement is, on its face, reasonable and that must be the starting position (State of Victoria v Schou [2004] VSCA 71). The challenge made by Ms Jordan is that it was not reasonable in the circumstances. An issue in assessing the validity of that challenge is whether reasonable inquiry was made by the employer as to non-discriminatory alternatives to imposing it. The reasonableness of imposing a discriminatory requirement is assessed, in part, by reference to reasonable efforts made to find alternative in the circumstances (see eg Reddy at [88]). 75 Ms Jordan's arguments were directed principally towards the third of the considerations above, saying that there were reasonably available options for NCHAS's providing her with duties that she would be able to perform on a full time active basis despite her late stage pregnancy, and that NCHAS failed to adequately consider those options. 76 To emphasise the reasonableness of the requirement, evidence led for NRAHS described the steps taken to accommodate Ms Jordan's inability to comply with it. 77 Ms Jordan's argument is not that the requirement was, in an absolute sense, not reasonable, but that it was "not reasonable having regard to the circumstances of the case" within the meaning of s24(1)(b). She says that in the circumstances the requirement was unreasonable because NRHAS did not consider other reasonably available options for her to continue in active full-time employment. Other options 78 Ms Jordan's evidence is that the NRPS Staff Manager, Ms Miller, did offer her the use of a small stool, which she was able to use only for a short period. She acknowledges too that Ms Miller offered her office duties, but says that that was offered to her in August for a period of only two weeks in September/October. 79 In the inquiry NRAHS suggested to Ms Jordan that she could have pumped up the beds to make it easier to collect blood. We have reservations about whether it is appropriate, when assessing the reasonableness of a requirement, to consider steps a person could, of their own initiative, have taken to comply with it. To do so appears to ask a question other than the reasonableness of the requirement itself, even "having regard to the circumstances of the case", and thereby to introduce a consideration that is not within the scope of s24(1)(d). 80 We need not take these reservations further, however, as the 'bed pumping' suggestion is not persuasive. Ms Jordan denies that she could have pumped up the beds, saying that she had never been trained or instructed to pump beds, that it was not the role of blood collectors to pump beds, and in any event she was not able to pump the beds in her condition with the patients in the beds. The patients were, due to their illness, often heavy, and could not be asked to get out of bed to enable it to be pumped. Although the 'bed pumping' suggestion was put to her in cross-examination, it had not been suggested to Ms Jordan by NRAHS at the time (that is, 'in the circumstances'), and the NRAHS called no evidence at the inquiry to counter Ms Jordan's claim that it was neither part of her duties nor within her ability to do it. Vacancies and swaps 81 Ms Jordan was employed in the Administration Department. Other Departments in the NRPS included Automated Clinical Pathology, Microbiology, and Anatomical Pathology (Histology). It was part of NRHAS's case that it looked beyond the Administration Department to possibilities in other Departments in NRPS and more widely in the NRAHS. We received extensive evidence as to the availability, or not, of options for Ms Jordan to continue in active full-time employment with NRAHS. 82 Ms Jordan says that the requirement was unreasonable because the NRAHS did not consider options for her to carry out alternative full time duties. Ms Jordan did not expect extra expense to be incurred by making her supernumerary. Rather, she says that she could have swapped duties with other staff who had the capacity to carry out her duties. Ms Jordan says that she had the training, skills and experience to work in other roles. 83 Ms Jordan concedes that there were no such options available in the Administration Department, but says that there were in other Departments. Specifically, Ms Jordan says that she had the skills to carry out duties in Histology where the only limitations on her would have been in interpreting results and signing off. Ms Jordan had in fact been originally employed in that Department. Ms Jordan concedes that she had had difficulty working with Dr Beer in Histology, but says that that was not an impediment to her working there again. To demonstrate that her working in Histology was within the expectations of NRAHS, Ms Jordan points to a memorandum from Mr Newell in October 1999 that reads in part "you may be required to return to the Histology area". 84 Mr Newell was the Operations Manager, Pathology and Biomedical Engineering of NRAHS, and was responsible for managing the NRPS. He agrees that reduced hours on blood collection was not a solution to Ms Jordan's inability to do the job, and that she needed to be fully relieved of her duties. His evidence is that he did not make inquiries of each Department as to whether there were vacancies available: he was in a position to know. 85 Mr Newell says that he reviewed the positions in the Administration Department but found nothing suitable. This is consistent with the evidence of the manager of that Department, Ms Miller and is conceded by Ms Jordan. On the question of whether Ms Jordan could have been allocated alternative duties in other Departments, Mr Newell says that "Ms Jordan was not skilled to work in the other Departments", and that, in any event, while there were duties on other Departments that Ms Jordan could perform, her "normal collection duties still needed to be performed. This would have necessitated additional staff being employed [and] Ms Jordan would have been a 'supernumerary". 86 Mr Newell concluded that "there were no alternative light duties positions available for Ms Jordan ... ". It is this conclusion that Ms Jordan contests: she says that there were in fact alternative duties available and that NRAHS had not given the possibilities sufficient consideration. The question for us that Mr Newell's evidence raises is: how did NRAHS satisfy itself that there were no possible alternatives to imposing the discriminatory requirement on Ms Jordan? 87 Mr Newell agrees that he did not formally ask the section heads whether there were light duties available. Mr Tranter, Acting Operations Manager, for example, gave evidence that when he was section head in the Automated Clinical Pathology Department in August 2002, he was not asked about the possibility of Ms Jordan working there. 88 Mr Newell says that he relied on the knowledge he had, as Operations Manager, of vacancies across the departments. Mr Tranter, who has since acted in Mr Newell's position, gives us reason to doubt the reliability of Mr Newell's claim that in his position he knew of vacancies across the departments, saying that as Acting Operations Manager he was not aware of vacancies as they occurred in the NRPS. Although Mr Tranter cannot say what Mr Newell knew or how he went about his job, it was not suggested to him that the role had changed at all or that he carried it out in any manner different from Mr Newell. 89 Despite claiming to know of vacancies across the departments, Mr Newell's evidence is that he "informally instructed" section heads to 'let him know' of any pending vacancies. 90 If looking for 'vacancies' was a reasonable way in which to accommodate Ms Jordan as an alternative to imposing the requirement, we are satisfied that NRAHS's efforts in this regard were inadequate, such that the requirement imposed on Ms Jordan was not reasonable. However, to merely seek vacancies was not an adequate response to Ms Jordan's request, and would itself have precluded NRAHS from giving real consideration to alternatives to the imposition of the requirement. 91 There was a practice within and between the Departments for employees to swap duties; Mr Stynes, Senior Human Resources Officer (Industrial Relations) at NRAHS, confirmed that this was done and was permissible. While it was the preference of Ms Boot, Manager of Human Resources, that arrangements for alternative duties not be made 'locally', that is, in and by the various departments, she acknowledges that that was in fact a common practice. 92 In his role as Acting Operations Manager Mr Tranter says that it would have been possible to swap Ms Jordan's duties as a ward blood collector with other duties. He concedes that this would have been difficult but says that it could have been done, and without additional cost if there was rotation of duties. 93 Mr Stynes dealt with Ms Jordan's request, conveyed through Mr Newell, on the basis that the request would be met if a 'like' position, or like positions, could be swapped with 'like', either within or between Departments, without incurring any additional cost. 94 To a very considerable extent, the efforts to find alternatives to imposing the requirement on Ms Jordan were limited to looking for vacancies, rather than considering the possibility of swaps. We are satisfied that Mr Newell did not investigate the possibility of swapping positions, but made inquiries only for vacancies. 95 In their evidence, both Ms Miller and Mr Newell were asked to comment on the possible positions with which Ms Jordan could have, she says, swapped duties. They ruled out each possibility. Mr Newell ruled out Ms Jay Pereira because she was a casual employee and to put Ms Jordan into her position would have had budgetary implications, and Ms Sandra Alley because Ms Jordan did not have the experience to do her duties. Significantly, Mr Newell ruled out Ms Kelly Brown, which we deal with below. 96 Ms Jordan gave oral evidence, not set out in her statement filed for the inquiry, that she had in fact been relieved of blood collecting duties for a week in June 2002. Her purpose in giving this evidence was to show that it was indeed possible to arrange a swap with staff who could carry out her duties. We gave leave for Ms Jordan to file evidence to support this contention after the inquiry, and for the NRAHS to file evidence in reply. Ms Jordan made a submission that the evidence was relevant as well to Ms Jordan's credibility; that is not the purpose for which leave was given to file the evidence, and we have not considered the evidence for that purpose. The evidence that was filed is of limited probative value on the issue of whether such an arrangement could have been made at the time Ms Jordan requested it. Further, the evidence in reply by NRAHS takes issue with the accuracy and sufficiency of the evidence filed by Ms Jordan. In those circumstances we do not rely on that additional evidence at all. Budget constraints and legal obligations 97 A constraint on Mr Newell's efforts to find alternative duties for Ms Jordan was the NRAHS policy that, as Mr Newell put it "an employee will only be assigned light duties if the NRAHS is not required to pay additional staff to fill the employee's position". This expenditure constraint was clearly relevant to any assessment that was made of Ms Jordan's request: it was repeated to us by Ms Miller, Ms Boot and Mr Stynes. 98 Ms Boot gave evidence that the practice, and related budgetary provision, is to make alternative duties available for employees with a legal entitlement under workers compensation legislation. Ms Miller confirms that positions are rotated for people on light duties for workers compensation, and that additional funds are expended on employing casuals, but only for a day or two. She says that the budget for workers compensation is dealt with in a way that allows for such expense, and is managed on the basis that the employer is involved in a risk management exercise. 99 Ms Boot did not seek advice as to whether she was under an obligation to meet Ms Jordan's request. Similarly, Mr Stynes did not consider Ms Jordan's request as one that raised a legal obligation for NRAHS. 100 Mr Consistently with Ms Boot's evidence, Mr Stynes said that the NRAHS had no policy on how to respond to a claim for alternative duties that was not related to a workers compensation claim. Such a claim, ordinarily accompanied by a medical certificate, would, says Mr Stynes, have triggered an investigation into what arrangements were possible. If a request such as Ms Jordan's could not be accommodated then the employee was required to take leave. 101 (We note that Ms Jordan did not submit a medical certificate, because Mr Newell did not require one and responded to her request without the need for one. Mr Stynes says, and we accept, that in Ms Jordan's case, whether she provided a medical certificate or not the result was the same. Ms Jordan's request was considered, inquired into, and rejected because there was nothing available, and would not have been handled differently had Mr Newell requested a medical certificate.) 102 Mr Newell did look for alternatives beyond the NRPS, asking Mr Stynes who confirmed to him that nothing was available "across the NRAHS". Mr Stynes was, however, working under the budgetary constraint. Indeed it was he who advised Mr Newell that the NRAHS "does not create a new position consisting of light duties of an employee unable to carry out their job". 103 But this budgetary constraint was never explained to us in the inquiry, and its legitimacy is not self-evident. The same constraint did not operate at NRAHS in relation to arrangements made for employees who are entitled, under workers compensation legislation, to be allocated alternative duties. The tolerance within the budget in those circumstances was said by Ms Miller to derive from those circumstances being budgeted for separately, as a dimension of workplace risk management. We were given no explanation why the same approach was not taken for issues arising under anti-discrimination laws. 104 It is clear that NRAHS did not see Ms Jordan as having a legal entitlement to alternative duties, and it is true that she did not have an entitlement equivalent to a workers compensation claim. What she did have was an entitlement to have NRAHS give serious consideration to full time alternatives to her blood collection duties. Histology 105 A further constraint on Mr Newell's efforts to find alternative duties for Ms Jordan was a belief that Ms Jordan could not work in the Anatomical Pathology ('Histology') Department, despite her having worked there previously. 106 The then section head of Histology, Mr Ray Johnson, says that he was not asked if Ms Jordan would be able work in the section. This is consistent with Mr Newell's evidence that he made no formal approaches to any section heads. Although Ms Jordan had worked in the Histology Department previously, Mr Newell says that he did not consider the possibility of her working there because more than four years previously, the then director of clinical Pathology, Dr Beer, lodged a grievance "in relation to Ms Jordan's alleged poor communication skills". Mr Newell says that for this reason "it would not have been appropriate for Ms Jordan to work in the Anatomical Pathology department again". 107 Ms Jordan says that she could have swapped duties with Ms Brown. Mr Newell did not deny this. Rather, his evidence was that, in his view, it would have been necessary to negotiate with staff in Histology to share some of the tasks of Ms Jordan was to swap duties with her. This was a step he chose not to take. 108 Mr Newell agrees, however, that an investigation found no evidence to support the complaint Dr Beer had made about Ms Jordan, that there had been no change in circumstances since his October 1999 memo put Ms Jordan on notice that she could be asked to return to work in Histology, and that Ms Jordan could perform the duties in Histology set out in a relevant duty statement. 109 We heard no evidence from Dr Beer, or anyone else who could confirm that Ms Jordan would, in August 2002, be unwelcome in Histology or that the arrangement would be unworkable. Mr Newell spoke to no-one in Histology about his views as to the feasibility of Ms Jordan's returning to work there. Mr Newell says that even if a swap had been arranged with Ms Brown in Histology, Ms Jordan would have required "extensive" training and supervision. No evidence on this was presented by NRAHS, and neither the need for and training and supervision, nor the practical and budgetary import of "extensive," were explained to us. 110 It is difficult to accept that these assessment s were genuinely made in circumstances where there was no discussion with the employees involved or the section heads. Mr Newell denied that his efforts to relocate Ms Jordan were not genuine, asserting his knowledge of the particular roles. We do not question Mr Newell's good faith in taking the steps that he did, but we are satisfied that however well-intentioned, his efforts were inadequate in the circumstances, and render unreasonable the requirement of Ms Jordan that she continue her ward blood collection duties. 111 We are satisfied that opportunities for NRAHS to provide alternative full-time duties for Ms Jordan were limited. We are satisfied, however that, rather than impose the discriminatory requirement, it was possible for NRAHS to have made considerably greater efforts to accommodate Ms Jordan's needs through alternatives that would have both enabled her to remain in full-time employment, and would have enabled blood collections to be done. 112 Before imposing a discriminatory requirement NRAHS was required to do more in the circumstances than to say, in effect, "there is no policy, there are no vacancies, there's no money, and there's no legal requirement". 113 Whether there was, or could have been available funds, was not the subject of inquiry or even reflection by NRAHS even though of alternative duties were, in other circumstances, provided with a budgetary impact; whether swaps were possible between or among other employees was not the subject of inquiry by NRAHS; whether there was the possibility of a swap into Histology was ruled out without consultation; and whether the Anti-Discrimination Act 1977 effectively imposed a legal requirement on NRAHS was never contemplated. As a result, the requirement imposed on Ms Jordan was, in the circumstances, not reasonable. 114 In our view the requirement, as well, lacks a logical and understandable basis for a number of reasons: the absence of a written policy to deal with requests such as Ms Jordan's; the absence of any training of staff as to how to deal with requests such as Ms Jordan's, the absence of a system that explored the possibility of alternative arrangements in response to requests such as Ms Jordan's; and, relatedly, the provision of light duties to an employee whose inability to work is protected by workers compensation legislation, but not to an employee whose inability to work is protected by anti-discrimination legislation. Finding 115 Because the discriminatory requirement which the NRAHS imposed on Ms Jordan was not reasonable in the circumstances, NRAHS's conduct contravenes the Anti-Discrimination Act 1977. Remedy 116 Ms Jordan gave evidence of how the discriminatory conduct affected her. It did not affect her sufficiently to warrant professional support or intervention or, if it did we saw no evidence of that. 117 Ms Jordan says that "the constant need to prove false what I perceive as lies about me has not only caused me anger and distress but has also been time consuming". No aspect of Ms Jordan's discrimination complaint has involved allegations that she has lied. In whatever context that suggestion has arisen, and has caused that effect on Ms Jordan, there is no evidence that it was related to the discriminatory conduct. We cannot consider ordering compensation for it. 118 Ms Jordan says that having to manage the complaint has put a great strain on her and her family. We accept that this is, by extension, a consequence of the fact of the discriminatory conduct, but we heard no evidence that detailed the nature, scope and degree of that strain. We will order some compensation for this 119 Ms Jordan says that "what was supposed to be one of the happiest times has been ruined by this whole ordeal". In the circumstances we assume that this refers to her pregnancy and giving birth at a time when she was in dispute with her employer. We accept this as a plausible and normal response to her circumstances, although we do not know what period of time, running from early August 2002, Ms Jordan says was 'ruined', nor what is meant in detail by 'ruined'. We will order some compensation for this. 120 Similarly we accept as a plausible and normal response her claim that her relationship with her partner was placed under pressure and that this led to feelings of guilt. But we do not know the time or nature of the pressure, or the period of time or effect of the feelings of guilt. We will order some compensation for this. 121 Ms Jordan claims that the experience has resulted in her being distressed at the thought of being pregnant again, and that she sometimes resents her child for having been the cause of her distress, with consequent feelings of guilt. These are serious claims of psychological harm for which there is no evidence. We cannot accept them, and cannot consider ordering compensation for them. 122 Ms Jordan says that she feels undervalued and intimidated as an employee of NRAHS. We accept as a plausible and normal response her claim that she feels undervalued, but we do not know any details of how this affects her. We will order some compensation for this. We do not, without further evidence, accept as a plausible and normal response to the circumstances any feelings of being intimidated, and cannot consider ordering compensation for it. 123 Ms Jordan says that she does not think that her opinion will be taken into account in future at the NRAHS, and that she would be wasting her time to pursue opportunities to advance her career with the NRAHS. This is Ms Jordan's speculation; we have no basis for assessing its likelihood, and cannot consider ordering compensation for it. 124 Ms Jordan claims she was robbed of time with her child because she returned to work earlier than usual due to lack of leave. The taking of leave for six weeks before she gave birth, at a time when Ms Jordan could have been working full time, and the consequent unavailability of leave to spend time with her new born child, was a direct consequence of the imposition of the requirement, for which we will order compensation. 125 In support of her claim for lost leave entitlements Ms Jordan filed, after the inquiry with leave, a statement which was not answered by NRAHS. That statement provided evidence of the amount paid to Ms Jordan in annual leave and long service leave in the period 13 August to 30 September; this is the period that she was unable to comply with an unreasonable discriminatory requirement. 126 But Ms Jordan says that it was her intention to use those leave entitlements after the birth of her child so as to spend as much time as possible with her child before having to return to work. She therefore suffered no financial loss over the period. Whether before the birth, as it happened, or after the birth and a period of maternity leave, as she had planned. Ms Jordan was going to be paid those leave entitlements. In the period between actually leaving work on 13 August 2002 and returning to work the following year, Ms Jordan was paid the same amount that she would have been paid in the period had she left work on 30 September 2002 as she intended, and returned to work the following year when she had intended. 127 The compensation Ms Jordan is entitled to is not for economic loss, but to compensation generally for having spent the period 13 August to 30 September on leave entitlements merely waiting for her child to be born, rather than having spent the same length of time on leave entitlements with her child after he was born. 128 Taking account of awards of compensation made in similar matters and of the observations we have made above about the evidence available to support any claim for compensation, we assess an appropriate amount of compensation to be $7,500. Victimisation complaint: what is the law? 129 Ms Jordan's second complaint is of victimisation: that the NRAHS, by its conduct, subjected her to a detriment on the ground that she had made an allegation that the NRAHS had contravened the Anti-Discrimination Act 1977 (s50(1)(c)). 130 The conduct that Ms Jordan complains of occurred after she returned to her duties from maternity leave, in early 2003. She says that the telephone in the collection room where she worked was barred, and a computer she relied on her for her duties was replaced with an inadequate computer. In a statement filed for this inquiry Ms Jordan complains as well of a performance management process, but that occurred after she lodged her complaint with the Anti-Discrimination Board and we have no jurisdiction to inquire into it. 131 There is no dispute as to what actions constituted the conduct of which Ms Jordan complains. Assuming for the moment that that conduct caused her detriment, the real dispute is whether the conduct was on the ground of Ms Jordan's having made her complaint of discrimination. It is sufficient if Ms Jordan's having complained of discrimination is a (and not 'the') ground of the conduct (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [236-243]). 132 The NRAHS has offered its explanation as to why the telephone was barred and the computer replaced. The reasons it gives, through its officers, are plausible and entirely within its knowledge. Ms Jordan is not in a position to challenge those reasons; she knows no more of the circumstances of the conduct she complains of than the fact that it happened. She is suspicious as to the reasons for the conduct, but no more than that. There is no evidence from which we could reasonably draw an inference that the conduct she complains of occurred on the ground that that she complained of discrimination. 133 In those circumstances we are not satisfied that Ms Jordan was victimised within the meaning of s50 of the Anti-Discrimination Act 1977. ORDER 1. The complaint of discrimination on the ground of sex (pregnancy) is found to be substantiated, and the respondent will pay to the applicant $7,500 in compensation for loss and damage. 2. The complaint of victimisation is found not to be substantiated and is dismissed. 3. Should either party wish to make an application for costs, they shall file and serve such application within 10 days of publication of this decision, and file and serve submissions in reply within a further 10 days.

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