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What Laws Are There Protecting Against Pregnancy Discrimination?

Not for the first time, I had a client call asking for advice around an employee who had recently started with them and just told them she was pregnant. Could they sack her? They say she should have told them at the interview that she was pregnant. As business owners and employers, what would you do in this situation?

In this case, the woman said she had been made redundant from her job about the same time she realised she was pregnant, and when she disclosed her pregnancy to other prospective employers at interview she had been unsuccessful. As women and mothers what would you have done in the employee’s situation?

I have personal experience of pregnancy discrimination so empathise with the many women experiencing it. Of course, there are inconveniences and potentially costs surrounding pregnancy in the workplace, especially for small businesses. I employ working mothers so I understand the challenges as a business owner.

However, working mothers have been to proven to be more productive, so any inconvenience is a worthwhile investment. A study by Ernst & Young found women working part-time waste the least amount of time at work of all workers, just 11.1% compared to 14.5% for the rest of the workforce. (Interestingly, they also wasted less time than their male part-time counterparts, who wasted 14.2% of their working time.)

Current low fertility rates (1.86 children per woman) indicates a growing trend by women to make a choice between work and family rather than seeking both. Such choices are still necessary partly because of the failure of workplace practices to accommodate the realities of pregnancy and family responsibilities.

It is therefore timely to remind ourselves of the legal rights of working women who choose to have children.

Laws Preventing Pregnancy Discrimination

There are three areas of the Sex Discrimination Act that aim to protect women against pregnancy discrimination:

  1. Pregnancy discrimination happens when a woman is treated less favourably because she is pregnant or may become pregnant
  2. Breastfeeding discrimination happens when a woman is treated less favourably because she is breastfeeding or needs to breastfeed over a period of time
  3. Family responsibilities discrimination occurs when a person is treated less favourably because the person has family responsibilities

Although highly unusual, an employer may have an acceptable basis to lawfully refuse to employ a pregnant applicant if she is unable to adequately perform the duties required for the position, such as where there may be safety issues in the workplace that cannot be resolved. For example, pregnant women working with infants in an early education centre may need to be moved to a room for older children during her pregnancy.

Leave Entitlements For Pregnant Women

The Fair Work Act covers leave requirements for women having babies, which include:

  1. Parental Leave – 12 months of unpaid parental leave. They can also request an additional 12 months of leave.
  2. Sick Leave – Pregnant employees still get their ordinary sick leave entitlements. If a woman experiences a pregnancy-related illness or injury, sick leave can be taken.
  3. Special Maternity Leave – For a pregnancy-related illness or her pregnancy ends after 12 weeks because of a miscarriage, termination or stillbirth.
  4. Safe Jobs – Move to a safe job if it isn’t safe for them to do their usual job because of their pregnancy.

Need Further Advice? Talk To Harrison Human Resources

With our HR Consulting and Outsourcing services, we can provide practical advice on your employer obligations in relation to pregnancy discrimination and leave entitlements.

Simply click here to request an obligation-free 15 minute phone consult to get some initial advice on your HR needs.

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