Parental Leave: Rights and Duties of Employers and Employees When Returning to Work
Do you know what rights an employee has when it comes to parental leave and returning to work? What obligations does an employer have to an employee with parental responsibilities?
In this article, we set out some of the main issues surrounding parental leave.
Workplace changes and the right to return to work
While on parental leave, an employee must be given information about any decision that may affect their pre-parental leave position. This means if a decision is made by management that will impact the employee’s position, for example, pay, location or general duties within the role, the employee must be informed and allowed to discuss these implications. This is usually done in writing, with a subsequent phone call or in-person discussion about the changes.
An employee is also legally entitled to return to their previous position, that is, the position they held before taking parental leave. If the position no longer exists, the employee is entitled to return to an available position for which the employee is qualified and suited nearest in pay and status to their pre-parental leave position.
If no such position is available, the employee may be terminated on the grounds their position has been made redundant.
Change in working arrangements
Both employees and employers should be aware of a worker’s right to request a flexible working arrangement at a time the employee has care responsibilities for a child. Any permanent employee is eligible to request a flexible working arrangement as long as they have completed at least 12 months of service with the employer before the requested change. Casual employees are eligible to request flexible working arrangements if they have been working for the employer on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment. The employee must put their request and reason for the change in writing and submit this to the employer. The employer must respond in writing to this request within 21 days.
A flexible working arrangement may include moving from full time to a part-time or casual contract, starting and finishing at different times or working from home in some instances.
Employers are not required to agree to all requests for flexible working hours. Any refusal, however, may only be on reasonable business grounds. Reasonable business grounds, as defined in the Fair Work Act 2009 may include the changes being too costly for the employer, there being no capacity for the employer to change the working arrangements, or the changes would be impractical. Other reasonable grounds for refusal may include the changes would result in a loss of efficiency, productivity or have a negative impact on customer service.
If a request is refused, the reasoning for the refusal must be included in the employer’s written response. These rules can be difficult to apply in practice as each employment relationship is different, so it is extremely important you seek independent, tailored legal advice to your situation.