Your employee has been away on parental leave and is now due to return to work. What next? Claire Mansell, Senior Associate at Martelli McKegg, answers some frequently asked questions
Managing an employee’s return to work after parental leave can be a difficult transition, but good communication and knowing your rights and obligations are essential. Read on as we answer some of the key questions that may arise during this time.
My employee is due to return to work next month. What do I need to do?
The employee is obligated to give you 21 days’ notice of their return to work (or not). Employees will often change their plans regarding their return to work after the baby is born so it’s a good idea not to make any assumptions until you have spoken with them.
My employee has asked to come back earlier. Do I have to agree?
An employee can only return to work earlier than previously agreed if the employer consents. The exception to this is where the baby has miscarried, is stillborn, or dies, or the employee is no longer the primary caregiver for some other reason. In these circumstances, the employee can return to work earlier without the employer’s agreement.
Do I have to allow my employee to work part-time?
No. An employee is only entitled to return to the role that they were previously employed in. If this means that they were previously employed in a full-time role, they are only entitled to return to a full-time role.
However, all employees (whether returning from parental leave or otherwise) are allowed to request flexible working arrangements. Flexible working arrangements include the ability to work on a part-time basis. An employer must consider an application for flexible working in good faith and there is a set list of reasons for refusing the request. The grounds for refusal may include:
Inability to reorganise work among existing staff.
Inability to recruit additional staff.
Detrimental impact on quality.
Detrimental impact on performance.
Insufficient work during periods when the employee proposes to work.
Planned structural changes.
Burden of additional costs.
Detrimental effect on the ability to meet customer demand.
If an employer does not want to allow an employee to work part-time, in most cases they will be able to point to one of the listed criteria above to justify their position.
My employee wants to breastfeed at work. Is this allowed?
Yes. In fact, employers are obligated to ensure, so far as it is reasonably practical in the circumstances, that there are appropriate facilities in the workplace for an employee who wishes to breastfeed at work. Employees must also be given suitable breaks to allow them to breastfeed (often breastfeeding mothers will have a schedule for breastfeeding, which they will need to strictly adhere to).
What is reasonable will depend on the employee’s operating environment and resources. For example, what may be appropriate for an office-based employee may not be appropriate for an employee who works outdoors.
If possible, you might want to think about providing a private and hygienic space (usually with a power point to operate a breast pump) for the employee and a fridge to store breast milk. In some circumstances, an employee may be able to access public facilities to breastfeed (for instance, large shopping malls usually have spaces for mothers to breastfeed).
It looks like my employee has continued to incur holiday pay while she was on parental leave. Is this fair?
Employees do continue to accrue annual leave while on parental leave. However, once the employee returns to work, they will be subject to the 'annual leave override'. This means that the annual leave that they take in the 12 months after they return to work from parental leave will be calculated on the average weekly earnings only.
This means that the calculation of annual leave will take into account the period when the employee was not earning. The practical effect of this rule means that employees who take annual leave in the year following parental leave will be paid at a much lower rate than other employees.
Are part-time workers still entitled to four weeks holiday?
Employees are entitled to four weeks of holiday per year. The difference is how that 'week' is calculated. Holiday pay is paid at either the employee’s ordinary weekly pay (as at the beginning of the holiday) or their average weekly earnings for the 12 months immediately before the holiday, whichever is higher.
A part-time employee’s weekly pay will be proportionally less than a full-time employee earning the same hourly rate.
Remember, an employee coming back from parental leave is also subject to the parental leave override (which further reduces the rate at which holiday pay is paid).
Annual leave calculations can get quite tricky, so it pays to seek professional advice if you have any concerns.
I’ve agreed with my employee that she will return part-time. What do I need to do now?
If your employee is returning on conditions which are different from those that existed when she went on parental leave, you must document any changes. This will usually be in a variation of employment agreement, which could be as simple as a letter signed by both employer and employee.
If you decide to make any changes to the employee’s conditions of employment, it pays to think of all the practical effects; for instance, if they are going to be working from home, then you need to think about who will pay for things such as internet or phone calls. Thinking through all the practical consequences will help avoid problems later on.
Managing a transition back to work after parental leave can be tricky, but it pays for both parties to be flexible and communicate their expectations. Employers should also bear in mind that, for the most part, the employee’s life will be completely different after having a child. It pays to have a full and frank discussion with an employee to avoid unnecessary conflict.
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 firstname.lastname@example.org. This article is not intended to be relied upon as legal advice.