In Australia, according to a 2017 Australian Bureau of Statistics survey, 73% of women work for at least some of their pregnancy. This means that there are many thousands of pregnant women in Australian workplaces each year. It is important to know that pregnancy is not an illness or disability, but it is equally important to understand that pregnancy may require workplace adjustments. Therefore, while a pregnant worker has no legal requirement to notify their employer of their condition, notification may be necessary on health and safety grounds, or to qualify for parental leave. Even so, it is often difficult for an employee to decide when to notify their employer of their pregnancy, due to fears that their employment opportunities will be limited after the announcement. This article looks at an employee’s obligations when notifying an employer of pregnancy in Australia.
Notifying an employer of pregnancy and confidentiality
As a general rule, an employer should never enquire whether an employee is pregnant, even if there are physical indications. In situations where it appears that an employee is pregnant and there are genuine health and safety concerns regarding their involvement in work activities, enquiries should be made in a confidential and sensitive manner. An employer should respect the employee’s privacy throughout their pregnancy, and only disclose the condition to co-workers with the employee’s permission. Even if a manager wants to discuss the potential pregnancy with a representative of Health and Safety or Human Resources, they must do so in consultation with the employee.
Protection for pregnant workers
Some employees are reluctant to notify their employer of their pregnancy because they are concerned that it will adversely affect their position. However, it is important to remember that a pregnant employee has legal protections against discrimination in Australia.
The Sex Discrimination Act 1984 prohibits an employer from demoting or dismissing an employee because of pregnancy, or even treating an employee differently due to their condition. In addition, an employer cannot make assumptions about the employee’s ability to work during a pregnancy. Pregnancy may well impact an employee’s capacity, but the employer cannot make unilateral decisions based on their own personal opinions about what a pregnant woman should or should not do.
The Fair Work Act 2009 also protects a woman against discrimination at work during her pregnancy. Under this legislation, employers cannot ask prospective employees whether they are currently pregnant or planning to start a family. A pregnant worker cannot be treated unfairly, dismissed, given fewer hours or overlooked for a promotion because of their pregnancy. However, entitlement to flexible work arrangements and parental leave depends on the worker’s employment contract, award or agreement, and how long they have worked in the role.
Work accommodations
A pregnant employee has no positive duty of disclosure to their workplace if they are medically able to continue their usual duties without variation. However, depending on the occupation, many workers require some accommodations during their pregnancy. In fact, the Fair Work Act requires employers to provide reasonable adjustments to accommodate a pregnant worker’s needs. It is up to the employee to broach the subject of workplace variations during their pregnancy. Notifying an employer of pregnancy at an early stage allows for forward planning and adjustments to workflow, creating a more organised and supportive environment for the pregnant worker and her co-workers.
It is perfectly acceptable for a pregnant worker to choose to only disclose their pregnancy as and when they need adjustments in their duties or to access leave. If the employee cannot discharge their normal duties because of pregnancy, their employer should move them to an alternative role with appropriate duties for the duration of the need. For instance, if a pregnant employee normally stands for long periods in her role, she has the right to undertake “safe work” instead, such as performing her duties while seated if this is medically beneficial. When there is no way to amend duties to make them safe, and no suitable alternative work, the pregnant employee can access either paid or unpaid leave.
Notifying an employer of pregnancy and accessing leave
While pregnancy itself is not considered an illness, an employee can access their usual sick leave entitlements if they are sick or injured because of their pregnancy. The employee can also take leave to attend scans, tests, and check-ups during their pregnancy. In line with the National Employment Standards, an employee often commences parental leave in the final six weeks of their pregnancy. The employee can choose to work past this point, but their employer may require medical clearance confirming the employee’s fitness to work. An employee should generally give their employer at least ten week’s notice before taking parental leave, allowing the employer to make appropriate workplace arrangements. Workplaces typically have procedures and policies on parental leave outlined in their employment contract or industrial award. At a minimum, federal legislation allows an employee to access twelve months of unpaid parental leave if they or their partner give birth or adopt a child.
Employees need to understand their rights during pregnancy, particularly if they encounter discrimination at work. Employers must take steps to make their workplace a safe environment for pregnant women, free from harassment and discrimination. Our employment law solicitors can provide advice or representation on this matter, please use this online form or call 1800 491 469.
