Garriock v Football Federation Australia [2016] NSWCATAD 63

Heather Garriock, a football (soccer) player, former Matilda, Olympian and mother of a three-year old daughter, brought a discrimination complaint against Football Federation Australia (FFA) to the Anti-Discrimination Board of NSW. The complaint arose when FFA offered Ms Garriock a place on a three-week football tour of the USA, but rejected her request for assistance with child care costs for the duration of the tour. FFA’s standard pay for a previous tour was approximately half of the costs of child care for Ms Garriock’s daughter.

Ms Garriock alleged FFA’s conduct was indirect discrimination and in breach of the provisions of the NSW Anti-Discrimination Act 1977 that make it unlawful to discriminate against an employee due to their carer responsibilities.

The central issue in the claim was identifying the requirement or condition that FFA needed Ms Garriock to meet. Identifying a requirement or condition is a key element in proving a claim of indirect discrimination. The unlawful conduct consists of imposing a requirement or condition that is harder for the person with the attribute to meet than for others, and which is not reasonable.

The NSW Civil and Administrative Tribunal found that FFA implicitly required Ms Garriock to be responsible for her carer arrangements and the costs of those arrangements during the USA tour. However, the Tribunal ultimately dismissed the claim because the way the requirement was formulated did not meet the definition of a ‘condition or requirement’ under the relevant section of the Act. In essence, the ‘requirement’ for Ms Garriock to provide for her own child care costs only affected players with carer responsibilities, not all players, so it could not be shown that a substantial number of players who did not have carer responsibilities were able to comply with the requirement.

This case helpfully explains that a comparison group for the purpose of assessing whether indirect discrimination exists is not required to be any particular size, but there must be a group to compare against. Employers who are considering requests for assistance from employees with carer responsibilities should ensure that their policies and practices do not set requirements or conditions that apply to all employees but cannot be met by a particular group of employees, even if that group is a single person.