Pregnancy and paid parental leave protections

When the pitter-patter of tiny feet is announced there are several things to consider. Often, the top of that list includes lost income, job security, and baby names (there is an ‘App’ for that).

(Despite having room for improvements[1]) the Parental Leave and Employment Protection Act 1987 (Act) provides, amongst other things, that eligible employees[2] are entitled to receive a parental leave payment from the government when they take parental leave. Parental leave payments are payable up to 26 weeks under the Act[3] and paid at a rate equal to the employee’s normal income[4] from work, although capped at a maximum rate.

On 1 July 2022 parental leave payments increased by 6.33%[5] meaning that the maximum weekly rate for eligible employees and self-employed parents will increase from $621.76 to $661.12 per week.[6]

As indicated by its title, the Act also stipulates the protections afforded to employees who are pregnant or take a period of parental leave under the Act. Unless specific exceptions have been met[7] it is prohibited to dismiss:[8]

  • a female employee due to her pregnancy or her state of health during her pregnancy;
  • an employee indicating that they wish to take parental leave, or any other benefits, under the Act;
  • an employee that becomes the primary carer of a child, or whose spouse or partner becomes the primary carer of a child; or
  • an employee while they are on parental leave, or within 26 weeks of the parental leave period ending.

Where an employee alleges that the employer has terminated their employment or given notice of termination in breach of the Act, the employee may raise a formal complaint under section 56 of the Act, and seek interim reinstatement or an interim injunction.[9] This is separate to the personal grievance procedures that are also available to the employee under the Employment Relations Act 2000.[10]

Dismissing a pregnant employee can also attract consequences under the Human Rights Act 1993, which prohibits employers from terminating an employee’s employment[11] due to their “sex[12] including pregnancy and childbirth, or “family status[13] which includes having the responsibility for part-time care or full-time care of children or other dependants.

Earlier this year the Human Rights Tribunal awarded $25,000 in damages to an employee after she suffered confusion, stress and humiliation after being dismissed while pregnant. The Tribunal described her as particularly vulnerable, being pregnant, young, in a precarious financial position, and lacking social support.[14]

These Acts ensure that both employers and employees are provided with clear guidance on how to best manage their relationship in the event that an employee is expecting or caring for a precious parcel(s).

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[1] See our previous article regarding this here: https://www.laneneave.co.nz/news-events/room-for-improvement-to-parental-leave-laws/

[2] Section 71CA, Employment Relations Act 2000.

[3] We note that some workplaces offer their employees additional parental leave benefits over and above this statutory entitlement.

[4] This is the greater of either 100% of the employee’s ordinary weekly pay; or 100% of the employee’s average weekly income. Refer s 71M(1), Parental Leave and Employment Protection Act 1987 (Act).

[5] To reflect the 6.33% rise in the average weekly earnings.

6 Section 71M ‘Amount of parental leave payment’, Act.

[7] For example, section 49 of the Act provides that dismissal may occur if the employee consent to the termination of the employment relationship, or if the employee absences themselves from work for a period where they are not entitled to take parental leave. Sections 51 and 52 provides special defences relating to dismissal during parental leave, or within 26 weeks after parental leave ending.

[8] Section 49, Act

[9] Section 55, Act.

[10] Section 103, Employment Relations Act 2000.

[11] Section 22, Human Rights Act 1993 (HRA)

[12] Section21(1)(a), HRA.

[13] Section21(1)(l), HRA.

[14] Beauchamp v B&T Co (2011) Ltd [2022] NZHRRT 10 (2 March 2022).

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