An employee’s return to work after parental leave can be tricky to navigate in a way that is suitable for both the employer and the employee.
It is critical that both parties adhere to the strict timeframes that apply to advising their intentions and entitlements, prior to and during the period of parental leave. If hasty calls are made, the employer could be in danger of dealing with a personal grievance or discrimination claim from the employee.
It’s a common scenario – an employee is going on parental leave and turning their mind to how they will balance new parental obligations with work. The employee may wish to gauge their employer’s willingness to allow flexible or part-time work arrangements that would support the employee to balance competing family and professional obligations.
While providing flexible arrangements are the “gold standard”, if an employer has a business that is not well suited to flexible arrangements or does not have the personnel to cover a part-time arrangement, then they do not have to provide special arrangements.
Parental leave obligations
For the purposes of this article, we are considering primary carer leave. This leave is available for an employee who is to become the primary carer of a child, has worked for an employer for at least six months and has worked an average of 10 hours per week.
This leave allows the primary carer to take 26 weeks off work. If they have worked for the employer for more than 12 months, they can take an additional 26 weeks of extended leave.
The employer cannot decline this leave, and the primary carer is protected from dismissal for reasons relating to their pregnancy or parental leave.
Because this is a period of leave, the role is treated as being continuous and the employer must keep the employee’s role open for them to return to on the same terms at the conclusion of their parental leave.[1]
Flexible work arrangements
All employees are entitled to make requests for flexible working arrangements under Part 6AA of the Employment Relations Act 2000. The employer must respond to this request as soon as possible and within one month of receiving the request and may only refuse a request if it cannot be accommodated on certain grounds.
These grounds are set out at section 69AAF(2) as the following:
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
- Burden of additional costs.
- Detrimental effect on ability to meet customer demand.
Application of flexible working arrangements in the parental leave context
If an employee has advised that they do not intend to return to work unless they are provided with flexible or part-time work, the employer should first engage with the employee as to what arrangements they are proposing and consider whether these will be workable for the employer.
If these arrangements are not possible – based on one or more of the grounds referred to above – the employer needs to advise the employee as soon as possible why these arrangements cannot be accommodated and why.
The employer is required to engage with the employee in good faith throughout this process. Even if flexible work is not available, an employer should not immediately presume this to be a resignation or otherwise dismiss the employee.
An employer should confirm with the employee that it remains open for them to return to their full-time position when their parental leave ends. If the employee decides to not return to work following their parental leave, they will need to tell their employer 21 days before the end of their leave. This will allow the employer to make other arrangements for that employee’s work.
For assistance or more information on the above issues, please do not hesitate to contact a member of our specialist Employment Team.
[1] There are some exceptions for if the employee’s role is considered a “key position” and is unable to be temporarily filled (this is a high bar and the employee must still offer a “period of preference”) or if the employee’s role is made redundant (although this has to be for genuine business reasons) at which point the role will end. In these circumstances, the employee may still be entitled to four weeks of parental leave.
