19 December, 2016
Cricket Australia has come under scrutiny of late, amid calls that its policy of requiring female playing staff, under their contracts, to notify them if they become pregnant. The issue has caused significant tension between the Australian Cricketers Association (ACA) and Cricket Australia.
However, James Sutherland, chief executive of Cricket Australia defended the policy, contending that it was not unlawful, and it was necessary in order to ensure the health and safety of female playing staff. Mr Sutherland expressed his disappointment at the decision of the ACA to challenge the lawfulness of the policy.
During pay negotiations, the ACA claimed that the policy was discriminatory in nature, in that it contravened the (Australian) Sex Discrimination Act 1984. The Act states that it is unlawful to ask a female employee if they are pregnant prior to the commencement of their employment.
Mr Sutherland later questioned the ACA's motive after senior executives worked with Cricket Australia to develop playing contracts in 2015, and failed to raise the issue.
The outcome of the negotiations which led to disagreement over the policy remains to be seen. Although Cricket Australia is remaining firm, citing the policy as a duty of care issue.
The equivalent body in England, the England and Wales Cricket Board (ECB), commented stating that it "does not have pregnancy notification clauses for female cricketers".
Hypothetically speaking, if one were to apply the Equality Act 2010 (England and Wales) to the situation, then the question which a Tribunal would most likely consider is whether Cricket Australia's policy is 'a proportionate means of achieving a legitimate aim', i.e was it proportionate (in other words reasonable and necessary in all the circumstances) to discriminate against female players on grounds of pregnancy in order to safeguard their health safety and the safety of their unborn child?
For advice or assistance in relation to this issue please contact a member of the Forbes Employment Team on 0800 689 0831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.