Pregnancy discrimination is now one of the most common grounds of complaint to anti-discrimination tribunals. When an employee (or their partner) becomes pregnant, their employer must comply with numerous industrial and discrimination laws.
An increasing number of employees are also seeking flexible work arrangements upon their return to work from parental leave, adding further complexity to such matters. While most employers feel comfortable dealing with standard parental leave scenarios, there are a number of common issues that cause particular concern for employers. Such issues include responding to requests for parental leave from employees with less than a year of service; and dealing with an employee whose position is made redundant while they are on parental leave.
What happens if an employee has less than 12 months of continuous service?
Employees are only entitled to statutory parental leave where they have completed 12 months of continuous service. However, where an employee is not entitled to statutory parental leave, the employer still has obligations under discrimination laws. An employer must not discriminate against an employee because of her pregnancy. Practically, this means that employers should consider and discuss with the employee alternatives to parental leave such as taking a reasonable period of leave using other forms of accrued leave (such as annual leave) or using leave without pay. Any such arrangements should be clearly documented, to provide a basis for action if the employee does not comply with an agreed return-to-work date. Where it is not possible to grant other forms of leave for a satisfactory period of time due to genuine business needs, the employer should provide reasons to the employee. Employers should not force the employee to resign or terminate their employment without genuinely considering other options available.
Redundancy
Under NSW industrial laws, employees are entitled to return to work from maternity leave to the position they held prior to commencing leave. Failure to comply with these laws may result in prosecution for breach of industrial laws or claims under discrimination laws. If the employee's position no longer exists because it has been made redundant, the employer is required to offer the employee another available position that the employee is qualified for and capable of performing. If there are numerous such positions available, the employee is entitled to the position that is as nearly as possible comparable in status and pay to their former position. One of the common issues that arise in such situations is where the employee challenges the genuineness of the redundancy and/or assessment of other comparable positions. It is therefore advisable to have a clearly established business case for the redundancy in the event it is challenged.
Managing return to work
Increasingly, employers must provide flexible working arrangements in order to be employers 'of choice' and retain quality staff. However, managing requests for flexible working arrangements, such as part-time work, can be challenging for employers, especially when these arrangements conflict with business needs. Is there a right to part-time work?
A common issue for employers is dealing with requests from employees to return to work from maternity leave into their previous full-time position, on a part-time or job-share basis; or requests for other flexibilities to assist the employee to balance work and family responsibilities.
As Jane Seymour, senior partner at Australian Business Lawyers, explains: "Since 1 March 2001, 'carers' responsibilities' has been a ground of discrimination under the NSW Anti-Discrimination Act. Under the Act, it is unlawful for an employer to discriminate, either directly or indirectly, against an employee on the grounds of that person's responsibilities as a carer. Increasingly, employers are faced with requests from employees for flexible work arrangements (such as part-time work or working from home), citing carers' responsibilities as the reason for the request. Where such requests are unreasonably refused, this may amount to carers' responsibilities discrimination.
"There is no legal right to part-time work in these circumstances. However, unreasonable refusal of part-time work may constitute discrimination based on sex, pregnancy or carers' responsibilities. Whether part-time or flexible work arrangements are 'reasonable' depends on the particular circumstances of each case, including the nature of the position and business interests. If an employer refuses a request for part-time working arrangements in a particular role, they must be able to give good reasons why that role cannot be worked part-time.
"Employers must genuinely consider requests to work part-time and other flexible work arrangements in the employee's current role, and should consider other alternatives that may meet the employee's requirements. This includes considering alternative part-time positions that are available. It does not mean creating entirely new positions or bogus jobs, nor does the obligation translate into an absolute requirement to make part-time work available if there is none.
Using a trial period and review process can be a useful way to road-test flexible working arrangements whilst maintaining an 'out' if the work arrangements prove to be untenable. Further, by keeping appropriate records of agreed arrangements and business cases for decisions made in relation to maternity leave and return to work, employers will be able to show they have considered the relevant issues should they be challenged in legal proceedings.