Should employers be able to, ask if you are pregnant?

Posted on Sep 18, 2017 by Graham WynnGraham Wynn

Should employers be able to, ask if you are pregnant?

There has been an article flooding social media pages in the past week, where a conversation in Brisbane was overheard, with one person saying to another, “I would have offered her the job, but for the fact she is pregnant.”

Pregnancy is still a major issue in employment, and one that the discrimination act is very strong in protecting mothers and expectant mothers.

However, we need to ask the question, should an employer have the right to ask a woman if she is pregnant, prior to being offered a job.

This came to light recently with a client of mine, who advised that a person who started 3 weeks ago, has now advised she is 6 weeks pregnant. The lady in question would have known at the time she was accepting the role, that she was pregnant, or at least would have had a clear realisation that she may be. So where is the onus on her being honest and responsible when accepting a role?

This job requires the person to travel extensively to China every 3 to 4 months, which clearly now, this will not be able to happen. The employee knew this was key requirement of the role. So why would the employer want to invest time and money in the person when such a situation arises.

Where is the protection for the employer?

Many companies ask prior to commencement if you have any medical issue or condition which could impact on your ability to perform your duties, and this is often asked as someone may have epilepsy for instance, so the employer knowing they can respond if any issue occurs.

Tis surely creates a safe working environment.

Should pregnancy not also be classed as a medical condition which could impact on your ability to do your job?

What about a sales rep, where she will be getting in and out of cars and driving long distances, surely being pregnant will have an impact, and any job that requires lifting or any physical activity will be impacted if you are pregnant.

There is in employment law, a term known as  “frustration of contract” meaning if a person is no longer able to perform their duties, they can may be terminated. The example of this would be a sales rep who lost his licence for drink driving, so would be unable to do his duties.  Is this law an option for employers who are faced with a case similar to that I have outlined?

Understanding of course, that if you fall pregnant while employed is something that happens and no employer would begrudge this.

The issue is about whether an employer should have the right to ask prior to commencing if you are pregnant or not?