As yet another study confirms the stress that working mothers face, some employers may look to ‘help’ by reducing the mother’s workplace responsibilities – but one employment lawyer told HC that this strategy could carry legal significant risks.
Researchers from La Trobe University found that stress and ill health was being cause by a lack of access to support. The report, part of the university’s Longitudinal Study of Australian Children, found that – unsurprisingly – women remain overwhelmingly responsible for child-rearing and domestic chores, which is affecting their overall health.
According to the study’s lead author, Dr Elizabeth Westrupp, one of the more surprising findings was that the pressure was not easing on working mothers as their children grew up, with working mothers who worked longer hours reporting the worst mental health of all the participants, alongside those who were financially or socially disadvantaged. The findings were based on a large sample of working mothers, who the researchers studies for the first eight years of their children’s lives.
However, well-meaning HR managers could be exposing their companies to legal risks by attempting to lessen the workloads of working mothers.
According to Bianca Mazzarella, lawyer at Melbourne firm McDonald Murholme, employers put themselves in a risky position if they make any decisions that could be interpreted as adverse action against new or expecting parents.
“The Fair Work Act prohibits an employer from taking adverse action against an employee who has parental responsibilities and is accordingly exercising their workplace rights – so if women are discriminated against by virtue of taking parental leave (whether that leave is paid or unpaid), they can make a claim under the Fair work Act,” she explained.
Mazzarella added that this prevents women from being punished for exercising their rights when they become mothers, by allowing them to bring a claim to the Fair Work Commission (FWC) to stop any discriminatory action.
“Because the Fair Work Act protects employees and their rights (including the right to take parental leave), if an employee goes to work and announces that they are expecting a child and adverse action is taken – such as the decreasing of their responsibilities or termination – they can go to the FWC and seek compensation or reinstatement,” Mazzarella said.
“It’s important for employers to ensure that they are not taking adverse action against mothers or fathers when they take parental leave, and not to diminish their responsibilities without them having requested a lighter workload.
“To do so would be a gross injustice to society; as the research illustrates that working mothers positively influence their children, who then contribute to society.”
Mazzarella also suggested that employers should be considering whether they can do more to support working mothers.
“Those employers who do discriminate against women would likely be impacting those employees’ mental health, and so there needs to be more access to support for women in the workplace and their mental health,” she told HC.
“It’s a gender thing – as women tend to be the primary carer and are accordingly relied on by their families, employers should show understanding and not punish women by taking adverse action against them during their employment.
“The last thing employers should do is imply that new mothers are no longer serving the business or are taking too much parental leave and consequently dismiss them.”
Mazzarella added that it’s important to remember the Fair Work Act protects men as well as women in relation to parental leave.
She also warned employers to take women seriously if they did make any complaints about their workload being detrimental to their mental health.
“All employees have the right to a healthy and safe working environment,” Mazzarella said.
“Under the Fair Work Act, if an employee makes complaints about their health and safety at work which leads to adverse action being taken against them, then a claim can be brought against the employer.
“The onus will be on the employer to prove that the complaints were not a reason for the adverse action. Typically, the reverse onus will be difficult for an employer to satisfy as the complaints do not have to be the sole reason for the adverse action, but merely ‘a’ reason in the decision maker’s mind.
“Similarly, the Fair work Act seeks to prevent adverse action being taken against an employee for a reason or reasons including mental illness.”
You might also like:
Responding to mental illness – a best practice guide
‘Band-Aid’ approach failing to support mental health
Managing mental illness: what you need to know