Maternity leave and return to work: obligations on employers

by Peta Bissell

Two recent decisions have looked at maternity leave and return to work issues.

These decisions emphasise that, under State and federal equal opportunity legislation, employers have a two-fold obligation to employees returning from maternity leave:

  • to ensure that the employee is not disadvantaged by having taken maternity leave

  • to accommodate any reasonable request of an employee for flexible work arrangements.

  • In determining what is ‘reasonable’ in relation to a flexible work request, factors such as:

  • the job performed by the employee

  • the type of flexible arrangement requested

  • the likely duration of the arrangement

  • whether there are alternative ways of addressing the reason for the request

  • the cost to the business

  • the detriment to the employee if refused and any likely mutual benefits have been considered by relevant Courts and Tribunals.

  • These same considerations will be relevant in dealing with any request for a flexible working arrangement that has been made by an employee in connection with family or carer’s responsibilities, even where the request has not been made pursuant to return from maternity leave.

    Entitlement to return to previous position after maternity leave

    In a recent decision of the Federal Court of Australia an employer was found to have constructively dismissed a female employee and discriminated against her when it failed to return the employee to the same job after her return from maternity leave.

    The Court found that the employee had been discriminated against on the grounds of sex and pregnancy on the basis that:

  • the employer refused to allow the employee to return to the same position (managing the same clients and accounts) that she had held prior to going on maternity leave

  • the employee would not have been moved by the company to another position if she had not become pregnant and taken maternity leave

  • the employee, upon returning from maternity leave, was offered duties and responsibilities by the company of ‘significant reduced importance and
    status, of a character amounting to a demotion’.

  • Importantly, the Court concluded that the fact that the change in the employee’s position did not involve any variation in salary or conditions of service, and did not prevent a finding of discrimination due to the fact that it was ‘manifest’ that the position offered was of a significantly lower status with reference to the proposed tasks, duties and responsibilities.

    This decision demonstrates that employers are required to allow employees returning from maternity leave to return to the same position that they occupied prior to going on maternity leave (as if they had never been on leave). An exception to this obligation is if that position no longer exists, in which case the employee should be provided with a comparable position.

    Family responsibilities and part-time work

    In another recent decision, a Federal Magistrate determined that a female employee had been dismissed because of her family responsibilities, and that her employer’s refusal to accommodate her request to work part-time after returning from maternity leave, was indirect discrimination.

    Magistrate Driver found that the employer, without sufficient reason, was unwilling to agree to the employee’s request to work part-time after her return from maternity leave and had filled her full-time position before she returned to work. Accordingly, Magistrate Driver held that the employee had been directly discriminated against as her employer had terminated her employment because of her family responsibilities. The Magistrate also held that the employer had discriminated indirectly against the employee when it denied her the opportunity to work part-time, as the requirement that an employee work full-time is inherently disadvantageous to women.

    This decision demonstrates that it can be indirect discrimination for an employer to unreasonably require an employee returning from maternity leave to return to full-time employment or to work specific hours if it is harder for the employee to do so due to her family responsibilities.

    Implications for employers

    Employers should:

  • consider introducing a policy which sets out a clear procedure to be followed when an employee requests a flexible working arrangement and guidelines for the employer’s handling of the request

  • carefully consider each request for flexible work arrangements on its own merits

  • ensure that they have appropriate processes in place to receive, consider and (if appropriate) implement alternate work arrangements, such as:

    • allowing an employee to work from home some or all days

    • adapting or being flexible with employee start and finish times, roster arrangements or break times

    • giving consideration to flexible work and part-time / job share

    • being flexible with the amount of unpaid or paid leave an employee can take and when they can take it.


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