A former KFC employee was awarded $80,000 in general damages and $10,000 for psychiatric treatment after a tribunal found her employer discriminated against her due to her breastfeeding responsibilities.

The employer, Southern Restaurants Group (SRG), is the largest private KFC franchise owner in Australia. It was ordered by the ACT Civil and Administrative Tribunal to overhaul its policies to better support breastfeeding employees within six months.

This is the first case in the anti-discrimination jurisdictions of Australia concerning breastfeeding parents at work. This decision could influence the outcome of other discrimination cases where employers assert the defence that an employee is unfit to perform the inherent requirements of the role.

What Happened?

• The employee was employed by SRG from 10 August 2015 until 8 November 2022. From November 2019 until her resignation, she was employed as an Assistant Restaurant Manager at various KFC stores.
• On 12 June 2021, the employee commenced approved parental leave and was due to return to work on 12 November 2021.
• In September 2021, the employee commenced discussions with SRG regarding her return to work. Due to the overwhelmingly positive experience she had during her employment, the employee had high expectations that she would return to work with support from her employer.
• SRG’s response to the employee’s request for a flexible work arrangement was clumsy at best. She was initially required to meet with two male managers who asked her intrusive questions about breastfeeding and expressing milk and suggested she speak with other employees about how they balanced breastfeeding and work responsibilities. When the matter was escalated internally, the female Chief People Officer shared that when she had returned to work after giving birth, she had expressed milk in a toilet cubicle.
• In various discussions, SRG gave the employee the option of working on a casual basis.
• On 26 October 2021, the employee submitted a formal request for flexible working arrangements. She asked for a private, clean room with a comfortable chair, a fridge to store milk, time to express, and facilities to wash and store equipment. As an alternative, the employee requested time away from work to express milk in a nearby parent’s room. In response, SRG stated that it could not provide a private room due to space and cost constraints, and the employee could not leave the store to express milk as she was a manager. However, a sink and fridge could be provided.
• On 11 February 2022, following discussions, the employee lodged a complaint with the Human Rights Commission of the ACT. A return-to-work plan was then agreed upon. Although the employee was not permitted to leave the store during meal breaks, a pop-up tent would be provided in the back storeroom with a comfortable chair.
• On 25 March 2022, the employee returned to work to find no arrangements had been made. There was no tent or chair. She left work distressed. On 26 March 2022, the employee returned to find a tent and chair. However, the space was cramped and uncomfortable. She was concerned about privacy, as the tent was not enclosed, and the sound of expressing milk was audible.
• On 30 March 2022, the employee informed SRG that the arrangements were unsuitable and that she would be accessing unpaid breaks during her shifts. She was told that was not permitted since the relevant facilities had been provided.
• From June 2022, the employee was permitted to leave the worksite when another manager was available. However, often managers were late and she could not take breaks, causing significant physical pain.
• On 8 November 2022, the employee resigned.

Impact on the Employee

The employee described the personal impact arising from SRG’s failure to meet her breastfeeding needs and her interactions with SRG on this issue. The employee:

• Felt overwhelmed and distressed by the lack of flexible work arrangements.
• Experienced anxiety and panic attacks.
• Felt isolated, pressured, and guilty, especially regarding breastfeeding.
• Experienced self-doubt and diminished self-worth, fearing others would have accepted the situation.
• Lost trust in KFC leadership, leading to strained relationships.
• Worried future employers would judge her ability to balance work and family.

SRG’s Response

Broadly stated, SRG submitted that they had accommodated the employee’s request for flexible work arrangements to the extent possible. SRG submitted that the employee’s claim really boiled down to her complaint that she was not permitted to leave the workplace during shifts, when another manager was not present.

SRG submitted that:

• As a franchisee, SRG was bound by the terms of a Franchise Agreement, which required a manager to be onsite at all times to manage workplace health and safety issues.  A breach of the Franchise Agreement could have serious consequences for SRG. 
• SRG’s policies provided a broad definition of workplace health and safety concerns that necessitated the presence of a manager. This included situations where hot oil was being used or when dealing with an irate customer.
• The employee’s contract of employment stipulated that she was required to remain onsite during all meal breaks, and she was compensated for these breaks in acknowledgment of this obligation.
• It was too costly and not feasible to roster additional managers to allow the employee to leave the store to express milk.

The Decision

There was no dispute that the employee held the attribute of ‘breastfeeding,’ which is protected under the Discrimination Act.

The Discrimination Act protects individuals from both direct and indirect discrimination. In this case, the tribunal found that SRG’s policies, which imposed a requirement that managers remain onsite during meal breaks, disadvantaged the employee because of her protected attribute—breastfeeding—and this amounted to indirect discrimination.

In this regard, the tribunal noted that:

• SRG imposed a requirement that all management-level employees must not leave the store unless another manager is onsite and trained in workplace health and safety.
• SRG’s condition was not mandated by law. It was a term of employment imposed for a commercial reason, as an efficient way of meeting workplace health and safety and other obligations.
• The condition would adversely affect people with the breastfeeding attribute who wanted to express milk during a shift where no manager was onsite, and they could not leave the premises.
• The onus was on SRG to prove that the condition was reasonable. The employee suggested reasonable alternatives that would have met any supervision, workplace health and safety, or other operational requirements. SRG failed to establish that the employee’s suggestions were not reasonable.
• SRG could have mitigated the disadvantage by ensuring sufficient managers were rostered, having an on-call manager, or offering work at another store with appropriate facilities.

The employee was awarded $80,000 in general damages and a further $10,000 for psychiatric treatment. SRG was ordered to complete a review of policies and procedures, and to produce an effective policy to allow breastfeeding employees access to adequate facilities for expressing milk during work hours.

Key Takeaways for Employers

Breastfeeding Accommodation Rights Under the Fair Work Act:  Breastfeeding is legally protected under the Fair Work Act and anti-discrimination laws at both the federal and state levels. This case marks the first decision regarding breastfeeding accommodations in an anti-discrimination tribunal, setting a precedent for future claims. Employers must carefully consider and fairly evaluate requests for breastfeeding accommodations, ensuring they are not unreasonably rejected.

Franchisees Should Budget for Unexpected Costs: Franchise businesses often operate with tight profit margins, so franchisees should anticipate the potential expenses of accommodating an employee’s protected attribute. This decision reinforces that accommodations cannot be deemed unreasonable solely due to financial or commercial concerns.

Understanding the ‘Inherent Requirements’ Defence in Discrimination Cases: The ‘inherent requirements’ defence, commonly used in discrimination cases, is not always a valid reason to deny accommodations. While it applies when an employee cannot fulfill core job duties due to a specific attribute, such as a disability, it was deemed unreasonable for SRG to enforce a shift requirement on an employee with the protected attribute of breastfeeding. The reasonableness of an accommodation depends on the specific circumstances.

The Importance of Legal Advice for Employers:  Employees are entitled to legal protections under the Fair Work Act and anti-discrimination laws, in relation to parental leave and related matters. This area of law is complex, and employers should seek legal advice to ensure full compliance. Legal advice also provides an unbiased perspective if a dispute arises, helping employers manage their responsibilities effectively.

The information in this update is a guide only. Seek professional advice before applying any information to specific circumstances. EmploySafe Legal does not accept liability for any errors contained in this update.

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497
kate.simpson@employsafelegal.com.au

Read the decisions here:

• Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2023] ACAT 57 (25 September 2023)
• Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2025] ACAT 3