Parental Leave Part 3

Parental Leave Part 3: Other Employment Law Entitlements

This post is the third and final post on parental leave. It covers entitlements that complement unpaid parental leave and other rights that protect pregnant employees under employment law.

Discrimination against pregnant employees

Pregnant employees are protected against discrimination in the workplace. This means that an employee cannot be dismissed, demoted or treated differently due to be pregnant.

Additionally, pregnant women can’t be discriminated against when applying for a position.

Sick leave

If an employee experiences a pregnancy-related illness or injury, she is entitled to take sick leave. Pregnancy itself is not considered an illness or injury.

Special maternity leave

Special maternity leave is unpaid and can be taken by pregnant employees who are not fit for work due to:
A pregnancy related illness, or
The pregnancy ending in termination, miscarriage or stillbirth after more than 12 weeks of pregnancy.

Employees who take special maternity leave due to a pregnancy related illness can take the leave until they are well or their pregnancy ends, whichever is sooner. Employees who take the leave due to miscarriage, stillbirth or termination may continue to take leave until they are fit for work.

Special maternity leave does not affect the amount of available unpaid parental leave.

Notice requirements

Employees need to notify their employer as soon as they can that they are taking special maternity leave, even if it is after the leave has begun. The employee will need to tell the employer how long she expects to be on leave and provide supporting evidence, such as a medical certificate if requested or required by workplace policy.

Unpaid parental leave and stillbirth or infant death

Employees can cancel their unpaid parental leave if their pregnancy ends in stillbirth or their child dies after birth.

An employer or the employee can give written notice to the other party cancelling the leave before it begins. If this occurs, the employee won’t be entitled to any unpaid parental leave. However, if the employee is unfit for work they may still be entitled to paid personal leave or unpaid special maternity leave.

Alternatively, an employee can give written notice cancelling the unpaid parental leave after it starts. They may return to work within four weeks after giving notice.

Employers and employees are free to make their own agreements about reducing or cancelling unpaid parental leave.

Safe job and no safe job leave

If a pregnant employee provides medical evidence that they are fit for work but that they shouldn’t continue in their present position due to the risks of the job or connected to the pregnancy, they are entitled to be transferred to a safe job. In this safe job, they should be working the same ordinary hours as they would usually or a different number of hours as agreed between the employer and employee.

The employee should remain in the safe job for the entirety of the risk period. The employee should be paid at the rate of pay they were paid before being transferred.

No safe job leave

Employees are entitled to ‘no safe job leave’ if there is no safe job for them to do during the risk period of their pregnancy. If the employee is entitled to unpaid parental leave, then the no safe job leave should be paid at the base rate of their ordinary hours. If the employee is not entitled to unpaid parental leave, then their no safe job leave will be unpaid.

For employees who are eligible for unpaid parental leave, the no safe job leave ends when the parental leave begins. The employer may direct that unpaid parental leave should begin before the employee gives birth if it is less than six weeks before the employee is due and:

  • They provide their employer with a medical certificate that states they are no longer fit for work, and
  • The employer requests a medical certificate and the employee does not provide one within seven days.

Guarantee of returning to old job

Employees on unpaid parental leave are entitled to return to work when the unpaid parental leave ends. Normally the employee should return to their pre-parental leave position. If their position no longer exists, they should be given a position that is closest in rank and pay to their previous position and for which they are suitable qualified.

Employee filling the position of the person on parental leave

Employers are required to notify a prospective employee that their position is temporary due to it normally being filled by a person on unpaid parental leave.

The prospective employee must also be notified of the rights of the person on unpaid parental leave, including that their return to work is guaranteed.

Consultation on changes to position whilst on unpaid parental leave

Employers must consult with their employees about any decision that will impact on the employee’s pre-parental leave position. This includes changes to rank, salary and location of the job. The employee is entitled to an opportunity to discuss the effects of the decision with their employer.

Keeping in touch days

An employee who is on parental leave may perform work for their employer. This is called a ‘keeping in touch day’ and the employee is entitled to be paid their usual salary or rate for the hours of work that they complete. The keeping in touch day will not interfere with the continuous period of parental leave.

Keeping in touch days need to meet the following requirements:

  • The employee is performing work in order to stay familiar with their employment and to make it easier for them to return when their leave ends,
  • Both the employer and employee consent to the specific day of work,
  • If the employer has requested the keeping in touch day, it must be more than 42 days after the child was born or adopted,
  • If the employee requests the keeping in touch day, it must be more than 14 days after the child was born or adopted,
  • The employee cannot perform more than 10 keeping in touch days of work.

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