When an employee leaves work to take maternity leave, the employer must comply with certain legal obligations with respect to that employee. Under both State and Commonwealth laws in Australia, employers owe two obligations to their employees. First, they must make sure that their employees are not at a disadvantage because of their decision to take maternity leave. Second, the employer must be flexible in accommodating the employee’s requests to return to work on a more flexible basis.

How to determine whether a flexible work request is reasonable

There are a number of issues that will need to be considered when determining the reasonableness of a flexible work request for an employee taking or returning from maternity leave. These factors include the following:

  • What tasks and duties are involved in doing the job?
  • What kind of arrangement is the employee requesting? What kind of days and hours are being proposed?
  • How long is the employee on maternity leave proposing that the arrangement be in place?
  • What will the likely cost be to the business?
  • How detrimental will a refusal of the request be to the employee?

The above questions should be asked when assessing a request for flexible working arrangements that relates to an employee’s family or carer responsibilities.

Is an employee entitled to their previous position following maternity leave?

A recent decision in the Federal Court of Australia clarified the question of whether employees are entitled to return to the role that they were in before taking maternity leave. In this case, the Court found that the employer had discriminated against the employee because of her pregnancy, and gave the following reasons for their decision:

  • The employer had refused to let the employee resume her usual position in the business before she went on maternity leave;
  • The employee would still be in her usual role had she not taken maternity leave;
  • When the employee returned from maternity leave, her employer offered her a position with less responsibility and of ‘reduced importance’, which equated to a demotion.

The Court also acknowledged the fact that the employee’s salary was the same as before and concluded that this was largely irrelevant in making a determination of discrimination. This is because the new position was, for all intents and purposes, of less importance in terms of the types of duties, accounts and tasks involved.

The only exception to this rule (that employees on maternity leave be allowed to return to previous position) is if the position no longer exists, in which case the employee ought to be offered a position of similar status, pay and responsibility.

Part-time work and family responsibilities

In another recent Court decision, an employee returning to work from maternity leave, made a request to her employer to work part-time due to her family responsibilities. It was argued that the employer was indirectly discriminating against the employer returning from maternity leave by requiring female workers returning from maternity leave to work full-time with no exceptions. The employer’s unwillingness to be flexible with the request for part-time work, coupled with the fact that such a requirement (to work full-time) is inherently unfair for women, led the Magistrate to determine that the employer had been unreasonable and had discriminated against the employee.

The above example shows that such conduct by an employer can be indirect discrimination when the employee is unable to meet such requirements due to family responsibilities.

What does this mean for employers?

Employers should do the following to ensure compliance with law surrounding employer’s obligations when their staff take maternity leave:

  • Integrate a workplace policy into the Employee Handbook that explains the procedure to be followed when making requests for flexible work arrangements, as well as a procedure for managing such requests;
  • Make sure to give proper consideration to every such request that your employees submit;
  • Make sure that your business has procedures for accepting, assessing and implementing (where necessary) requests for alternate work arrangements; and
  • When in doubt, consult a lawyer.

What kind of flexibility should employers show their staff?

When assessing a request for flexible work arrangements, there are certain measures that employers may take in implementing any requests that they deem reasonable, including:

  • Letting employees work from home for part of their working week, if not all;
  • Being flexible about start and finish times or when to give breaks;
  • Considering requests to work part-time/on a flexible basis;
  • Being flexible with how much leave employees can take (paid and unpaid).

Conclusion

If you believe your employer has treated you unreasonably in rejecting your request for flexible work arrangements, or you are an employer and are not sure how to approach such a request, speak with an employment lawyer about your concerns.

Our team at LegalVision has extensive experience in assisting both employees and employers in settling disputes regarding work arrangements.

Emma Jervis

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