The Australian Human Rights Commission has announced it will undertake an inquiry into the “prevalence, nature and consequences” of workplace discrimination against women who are pregnant or returning from maternity leave.

The inquiry will investigate the incidence of demotion, termination, reduction in hours and restructuring of an employee’s role, associated with parental leave or return to work following a period of parental leave. Information will be gathered through survey and possibly telephone interviews. An interim report is due to be released in October with a final report to be released in May 2014.

Contemporary circumstances require a different view

Interestingly, about the same time as this inquiry was announced, a decision came out of the Fair Work Commission in favour of a female employee whose request for part-time work, following her return from parental leave, was refused by the employer [Ms Hanina Rind v Australian Institute of Superannuation Trustees]. The Commissioner found that her request for part-time work was “unreasonably refused”, and went on to say that “While an opportunity for part time work on return from parental leave might not long ago have been considered a fortunate privilege, in my judgement, contemporary circumstances require a different view.”

The Commissioner also said that the employee’s request for part-time work "should be viewed from the contemporary vantage point, which affords considerable importance to the ability of women to give birth to children without foreclosing their employment due to the consequences of family formation".

Of course this decision should be taken in the context of the facts of the case – the agreement under which she was employed provided for a right to request part time work until a child reached school age. In addition, in the six months since dismissing the employee, the company had continued with an off-site part time provider for the role, who had also been used during the employee’s parental leave.

Lessons for employers

Nonetheless employers should not take the decision to refuse part-time work lightly, particularly given the increasing attention being focused on this issue. While it is reasonable to take into account the differing needs and flexibilities of big and small employers, all employers should ensure they give proper consideration to the options for employees returning from parental leave, and keep well-documented records of the process and decisions made in these circumstances.

We will look out for the interim report in October and keep you posted.

Christine Broad, Solicitor, BlandsLaw

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