Ms Schou, who had been employed as a Hansard sub-editor for almost 18 years and who was the parent and carer of a recurrently sick child, wished to work from home for limited periods during parliamentary sessions. She alleged that her employer had agreed to install a modem in her house to give effect to this arrangement and that it had later failed to deliver. She alleged that she was a victim of indirect discrimination because it was unreasonable for her employer to deny her wish.

In allowing the employer's appeal and in directing that the case be reheard by VCAT, the Supreme Court of Victoria found that VCAT had concentrated on the reasonableness (or otherwise) of the modem proposal whereas it should have concentrated on the reasonableness (or otherwise) of employees having to attend work on-site. This was an error of law.

The court held that VCAT had made an error of law in not assessing the reasonableness of the work on-site requirement in the context of the effects such an arrangement would have on the quality of an employee's` work and on the implications for the employer should other employees demand similar favours.

The Supreme Court of Victoria held that equal opportunity legislation was designed to protect against treatment which impacted less favourably on some than it did on others or which amounted to an unjust detriment to which others were not subjected. It did not involve a situation where an employer failed to favour an employee with a benefit (the provision of a modem) not available to other employees. The court held that the basis of the work relationship was the contract of employment and equal opportunity legislation had to co-exist with other legal obligations between an employer and an employee and did not necessarily displace them.

As a result of this successful appeal, the obligation of employers to provide flexible work arrangements will be canvassed again by VCAT.