How can I find out if my pregnant employee is returning to work?

Hey Aunty B,

I have a difficult employee who is now pregnant and won’t give me any indication about whether she will be returning to work full-time, part-time or not at all after she gives birth in three months’ time.

She says she will let me know a month or so before she is ready to come back. However her friend, who is also her colleague, says she is planning to start her own business but wants to keep us on hold just in case it doesn’t work out.

But we are a small company with five staff so how can we resource around that? And what if she starts in a competitive business and is still getting all our emails and newsletters and has access to our leads?

I have already put out job ads for a replacement but no one wants the job because it is a maternity leave position, even though I tell them it could turn into full-time as the employee hasn’t committed to return!

I feel really cross about this as I have had other staff members get pregnant and return to work and it has gone really well. When I was employed, I also told my boss when I was coming back.

Is there any way I can make her tell me her plans?

Want to do the right thing,

Lou

Dear Lou,

Hmm… I understand your frustration, and it is tricky, but there are things you can do. First, understand and support the fact that she has the right to 12 months maternity leave – which it sounds like you do. It can be a tricky thing to work around, but work around it you must.

Second, as our legal adviser Peter Vitale points out, the Fair Work Act requires your employee to give at least four weeks’ notice, prior to leave commencing, as to the intended start and finish dates of the leave period.

The employee must also give at least four weeks’ notice if she wishes to extend leave, but she is only entitled to extend once.

A reduction in the period of leave after it has started is allowed only with the employer’s agreement. The employee also has a right to request that maternity leave be extended by a further 12 months, which can only be refused on “reasonable business grounds”. Aside from the procedural requirements of the Fair Work Act, the question of the length of leave and return to work, whether part-time, full-time or otherwise is a vexed one, which is heavily influenced by anti-discrimination considerations.

In this case, Peter suggests an open discussion in which you require the employee to provide the notice required by the law. He also suggests making clear to the employee in writing her ongoing obligations of confidentiality and good faith to her employer, which apply even during maternity leave. Among other things, this means that an employee is not permitted to engage in other work during that period without the employer’s approval.

Hope that helps!

Be Smart,

Your Aunty B

This piece was first published on March 20, 2012