We explore this topical issue across two articles. In this article, Part 1: During pregnancy, we cover various issues that employers should be mindful of, and carefully consider, when they are informed of an employee's pregnancy, and during the employee's pregnancy. In our next article, Part 2: Parental leave and return to work, we will cover the different types of parental and related leave entitlements available to employees, and various workplace issues that might arise after an employee gives birth.
This is a complex area and employers may need to seek specific legal advice to ensure that they are fully complying with all of their obligations in each particular circumstance.
It is unlawful to disadvantage, or treat less favourably, employees (including casual employees) because of their pregnancy or family responsibilities.
Discriminatory behaviour can include making adverse changes to an employee's terms and conditions of employment (for example, converting the employee from full-time to part-time, reducing their working hours and/or extending their probationary period), denying the employee promotion or training opportunities, and/or actual (or constructive) dismissal.
To minimise the risk of unlawfully discriminating against an employee on these grounds, it is important for employers to:
- have discussions with the employee (rather than make assumptions) about their career plans, proposed parental leave and likely return to work arrangements; and
- refrain from making changes to the duties, working hours, status or location of any employee's role (during or after the pregnancy), without sound commercial reasons and prior consultation with the employee.
While it is beyond the scope of this article, employers must take similar precautions when addressing career planning or introducing changes to the employment arrangements of employees who are the primary carer of a newly adopted child, and those who are expecting a child together with their pregnant spouse or de-facto partner. This is because those employees are afforded the same protection against discrimination on the ground of family responsibilities.
Being pregnant or having family responsibilities does not, however, provide an employee with immunity from disciplinary action or performance management.
HEALTH AND SAFETY RISKS IN THE WORKPLACE
The simplest way to identify whether there are any potential health and safety risks, which may limit the employee from performing the inherent requirements of her role during pregnancy, is through an open and honest discussion. The employee can be asked to provide medical evidence for the purposes of identifying and assessing any such risks.
In a recent legal action brought by the Fair Work Ombudsman against the operators of discount retail stores1 , the employer allegedly told a pregnant employee that it was a tradition for women in China to not work during their pregnancy, directing the employee to go on two weeks' unpaid leave. The employer subsequently reduced the employee's rostered hours significantly, and as a result, the employee was forced to resign from her employment.
The Federal Circuit Court found that the employer had constructively dismissed, and unlawfully discriminated against, the employee in breach of the Fair Work Act 2009 (Cth) (FW Act). The employer was fined a total of $53,592, was required to pay the employee $7,197 in compensation, and had to make a formal apology to her for its conduct.
The above case highlights the dangers of employers making assumptions about an employee's ability to perform work during pregnancy and without any consideration of the inherent requirements of the employee's role.
TRANSFER TO A SAFE JOB AND "NO SAFE JOB LEAVE"
A "safe job" entitlement arises where a pregnant employee provides evidence (such as a medical certificate) which explains that even though they may be fit for work, they cannot continue in their present position. The reasons for this could be because of illness, risks arising out of the pregnancy and/or hazards connected with that position.
In those circumstances, if there is an appropriate "safe job" available, the employee must be transferred to that job for the risk period, with no other change to the employee’s terms and conditions of employment. This includes ensuring the employee's ordinary hours of work remain the same, unless the employee agrees otherwise.
Where no "safe job" is available, unless directed by the employer to take unpaid parental leave within six weeks before the birth, the employee can take "no safe job leave" as follows:
- if at that time the employee is entitled to unpaid parental leave (which has not yet started), then the employee is entitled to take paid "no safe job leave" for the risk period, and be paid at their existing base rate of pay for ordinary hours of work, or
- if at that time the employee is not entitled to unpaid parental leave (for example, where the employee's length of service is less than 12 months), then the employee is entitled to take unpaid "no safe job leave".
The period of "no safe job leave" ends when the pregnancy ends or the period of unpaid parental leave starts.
LEAVE FOR PREGNANCY-RELATED ILLNESS
Part-time and full-time employees can take paid personal/carer's leave for the period of any pregnancy-related illness.
Unpaid special maternity leave is also available to employees who have pregnancy-related illnesses within 28 weeks of their due date, subject to meeting notice requirements under the FW Act. As a result of amendments made to the FW Act, from 1 July 2013, employees who take unpaid special maternity leave, prior to giving birth, are no longer penalised by a reduction in their unpaid parental leave entitlements post giving birth (see our earlier article).
REQUIRING A PREGNANT EMPLOYEE TO TAKE PARENTAL LEAVE WITHIN SIX WEEKS BEFORE THE BIRTH
A pregnant employee wanting to work in the six weeks immediately before giving birth may be asked by their employer to provide a medical certificate stating whether they are fit for work, and even if the employee is fit for work, whether it is inadvisable for the employee to continue in her present position because of illness, risks arising out of the pregnancy, and/or hazards connected with that position.
The employer may require the employee to take a period of unpaid parental leave (commencing as soon as possible) if the employee, within seven days of the employer's request for a medical certificate:
- fails to provide the requested medical certificate, or
- provides a certificate stating that they are not fit for work.
The period of directed leave runs until the end of the pregnancy or until the planned leave was due to start, and is deducted from the employee’s unpaid parental leave entitlement. It is exempt from the rules about when the leave must start, that it must usually be taken in a continuous period, and relevant notice requirements.
Prior to a pregnant employee taking parental leave, an employer will usually look to recruit an employee to perform the work of the pregnant employee during their period of parental leave (known as a replacement employee).
Before engaging a replacement employee, the employer is required to notify the replacement employee:
- that their engagement is temporary
- that the employee on leave has a guarantee to return to work when their leave ends, and
- of the rights of the employee on leave in the case of a stillbirth or infant death, and where they cease to have responsibility for the care of the child.
It is prudent for employers to clearly identify to the replacement employee, before they commence, that their engagement will terminate in the above circumstances.
WHAT SHOULD EMPLOYERS DO?
Managing workplace issues involving employees who are pregnant and/or have family responsibilities can often be challenging for employers because of the rights and protections afforded to those employees under the FW Act and anti-discrimination legislation. Open communication and careful planning together with an employee (and any replacement employee) will help ensure such issues are effectively managed.
It is important for employers to implement relevant policies and procedures, and provide regular training to employees, to educate them about their workplace rights (during and after pregnancy) as well as their employment obligations. More importantly, employers must take a consistent approach when applying those policies and procedures.
Please stay tuned for our next article on this subject, in which we will consider the practical complexities of providing parental leave to employees (particularly in relation to employee couples), and how to effectively manage workplace issues that might arise after an employee gives birth.
1 Fair Work Ombudsman v Felix Corporation Pty Ltd, 7 November 2013 – this case is currently awaiting the handing down of a written judgement (see the media release on the Fair Work Ombudsman website).
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