It is a question that has been up for public debate since Jacinda Ardern, the recently elected Labour Party leader in New Zealand, had to deal with controversy hours into her new job after radio show announcer Mark Richardson said New Zealanders had a right to know whether there was a possibility their potential prime minister might take maternity leave.
While on air Mr Richardson said, “If you are the employer of a company you need to know that type of thing from the woman you are employing…the question is, is it OK for a PM to take maternity leave while in office?” (cite Eleanor Ainge Roy, ‘Unacceptable – New Zealand’s Labour leader asked about baby plans six hours into job’, The Guardian (online), 2 August 2017).
This is an interesting point, and without going into the obvious politics of the issue, there is legislation that deals with the pregnancy or potential pregnancy of a female worker. What is clear from the Australian legal context is that pregnancy discrimination is illegal and there are various ways from an employer perspective to be prosecuted if caution is not taken.
When is it discrimination?
The relevant state discrimination legislation and to a lesser extent the Sex Discrimination Act 1984 (Cth) provides scope for a worker to sue their employer if they are treated less favourably to a worker who is not pregnant or potentially pregnant.
Many cases we have dealt with have been due to employers:
- Believing they had the legal “right” to know if an employee was pregnant;
- Imposing a condition on the employee due to the pregnancy (for example increased sales targets);
- Asking the employee to take a pay cut due to the hours of work reducing before the birth of the child;
- Demoting an employee when she told her employer she was pregnant; and
- Pressuring an employee to resign because of her pregnancy.
All of the above were found to be discriminatory conduct and depending on the jurisdiction, orders can be made for damages, specific performance, public apologies or retractions, reinstatement and implementation of training programs.
The Federal jurisdiction is a little more limited (other than the Fair Work Act 2009) however there are investigative powers available to the President of the Sex Discrimination Commission.
What does the Fair Work Act have to say?
Understandably comments like Mr Richardson’s are dimly viewed by the Federal Circuit Court especially in the context of management level, sales and corporate positions.
The Fair Work Act 2009 (Cth) allows female workers two courses of action when pregnancy is linked to termination of employment, along with the option of making a General Protections claim if they are still employed.
As employers need to produce evidence to prove claims wrong in a General Protections suit, it is an area employee advocates have used to great effect to obtain sizeable settlement sums. (See
Why more employees are filing General Protections claims)
It is also important to note that there is state (and to a limited extent federal) anti-discrimination legislation which also gives tribunals and courts powers to award compensation, make public recommendations and even dictate internal work practices of a company.
What are the legal ramifications for employers?
Recently our firm worked with an accounting firm whose management team believed it would be “unprofessional” for a pregnant woman to have face-to-face contact with clients. We advised the client of the serious ramifications for such conduct, which included (but was not limited to) the following:
- Likely successful general protections applications while she was still employed which could lead to penalties of up to $63,000 for the firm and $12,600 for each individual director and manager participating in such conduct;
- Being forced by the Fair Work Commission (by way of a written and public decision) to ensure the pregnant employee had face-to-face time with clients;
- Being forced by the Fair Work Commission (by way of a written and public decision) to undertake training and assessment in the areas of discrimination
A word of warning for advisors
What is also clear from the legislation and case law is that advisors need to be very careful in their advice and conduct in regards to managing pregnant employees and frankly employees who may become pregnant in the future.
The concept of business advisors to advise on management structures and human resources functions is nothing new. What is new is the reach, ability and appetite for the Fair Work Ombudsman, trade unions and employee advocacy firms willing to sue external and third party advisors for giving advice that is commercially savvy but inadvertently breaches discrimination legislation and the Fair Work Act 2009.
When advising in these areas, it is important to use legal disclaimers or have such advice subject to specialised legal advice from a lawyer. Such documentation could assist advisors in limiting their liability to some extent.
NB Lawyers, the lawyers for employers offer a consultation to discuss how they can assist you with any concerns you may have regarding pregnant employees.