Navigating your obligations as an employer around parental leave can be tricky. To help ensure you are fulfilling them, Martelli McKegg Senior Associate Claire Mansell has provided a summary of what employers need to know
While the birth of a baby is a joyous occasion, navigating the parental leave system can seem daunting.
For many small to medium-sized businesses, which lack the resources big businesses have at their disposal, dealing with parental leave can seem very overwhelming.
However, carefully working through such matters and getting good advice from your professional advisers can help you through. We answer the most common questions that businesses have below.
Please note this guidance is current as of mid-February 2022 and should not be relied on as legal advice.
What do I need to do if my employee tells me that she is pregnant?
The first thing you need to do is ask the employee what her due date is and when she would like to start parental leave. Once you know these details, you can work out what your obligations are. You have seven days to do this and the employee must respond within 14 days.
After 21 days, you will need to send the employee a letter confirming whether the employee is entitled to parental leave, their rights and if you can keep their role open.
How do I know if my employee is entitled to parental leave?
Your obligations as an employer will be different depending on how long the employee has been employed by you and how many hours they work a week. First off, the employee has to have been working for you for at least six months at their due date to have any entitlements. Secondly, the employee has to have worked an average of at least 10 hours a week over either the previous six months or 12 months before the baby’s due date.
If your employee has worked more than six months at her due date and for more than an average of 10 hours a week, then she will be entitled to 26 weeks of primary carer leave and 10 days of special leave.
If your employee has worked for more than 12 months at her due date and for more than 10 hours a week over that time, then she will be entitled to 52 weeks of primary carer/extended leave and 10 days of special leave.
Okay, but what is primary carer/extended leave and special leave?
The different types of leave can get really complicated and the employee’s entitlement will depend on the employee and their partner’s eligibility. This is because some couples will agree to share leave (which is a whole different topic!).
Primary carer leave and extended leave is unpaid leave. Basically, it’s the length of time that you need to keep the mother’s job open for. This can be up to 52 weeks.
Special leave is 10 days of unpaid leave that an employee who is pregnant can use for pregnancy related reasons. This would normally include midwife appointments, scans, antenatal classes.
Both of these types of leave are unpaid.
So do I need to pay my employee anything while she is on leave?
An employer is not required to provide the employee with any additional paid leave. These types of leave are unpaid. However, many mothers will be entitled to paid parental leave. The government is responsible for paying this. Employers can choose to pay extra if they wish.
I’ve got a really busy business, so I can’t keep my employee’s role open for 12 months. What do I do?
In most cases, businesses will need to keep their employee’s role open while they are on primary carer leave or extended leave. A business can reallocate the employee’s work amongst the other staff, or make temporary arrangements to manage their workload (for example, employing a worker on a fixed-term contract).
Sometimes, a business will not be required to keep the role open if they can prove a temporary replacement is not reasonably practicable due to the key nature of the position, or because of a genuine redundancy situation. If you believe that this situation applies, we strongly recommend seeking legal advice first.
Redundancy situations will need to be handled with care. There is a presumption that a woman on parental leave will be redeployed within the business if possible.
These protections stay in place for six months after the employee returns to work.
I’m pretty sure that my employee is not going to return to work after going on parental leave?
If an employee decides not to return to work, they must tell you at least 21 days before they are due back.
However, it’s always a good idea to keep the lines of communication open while your employee is on parental leave, so you understand what they are planning to do.
My employee is coming back from parental leave and has asked to work part time. Do I have to agree to this?
The business has an obligation to keep the employee’s role open while they are on leave. If this is a full-time role, then the employee will be entitled to return to that full time role. They don’t have an automatic right to a part-time role.
However, any employee (whether returning from parental leave or not) can ask for a flexible working arrangement. This request could include changes to the way the employee works, where they work and/or the hours worked. If an employee makes a request for a flexible working arrangement, the business must consider the request in good faith and reply within one month. There are a number of limited grounds, which a business can rely on to reject an application for a flexible working arrangement. Basically, there needs to be genuine commercial grounds for doing so.
One of my employee’s wives is having a baby and has asked for time off. How much is he entitled to?
If your employee has been working for more than six months at the due date and for more than 10 hours a week on average, they will be entitled to one week’s unpaid leave. If your employee has been working for 12 months at the due date and 10 hours per week on average, then they will be entitled to two weeks of unpaid leave.
Partner leave can be taken any time between 21 days prior to the due date and 21 days after the baby is born.
My pregnant employee is struggling with the heavy lifting involved in landscaping. Do I have to offer light duties?
If your employee is unable to perform her work safely or adequately due to pregnancy, you may temporarily transfer her to another role. However, in some cases, there might not be any suitable alternative roles, or your employee might be too unwell to work at all. In those cases, a medical practitioner (usually a midwife or doctor) can certify that the employee should start her primary carer leave early.
It’s important to remember that not all women will experience pregnancy the same way. Employers should check in with their pregnant employees regularly to make sure that they are coping with their duties.
Is there anything else I need to know?
Most likely. Parental leave can get quite tricky and there is lots that we haven’t been able to cover. If you get it wrong, it can be costly. If in doubt, call your legal adviser (or us!).
Claire is a senior associate in Martelli McKegg's litigation team and specialises in employment law. She represents and advises both employers and employees on a range of employment issues.
Her phone number is +64 9 300 7617 and email email@example.com. This article is not intended to be relied upon as legal advice.