Worker resigned after being forced to go on parental leave early
In a recent decision from the Human Rights Review Tribunal (HRRT), a beauty therapist was awarded almost $100,000 after her employer unjustifiably ordered her to go on parental leave.
This case highlights the importance of engaging with employees regarding their needs, particularly during pregnancy. A failure to do so could have significant financial repercussions. Although the HRRT awarded a substantial sum, it is worth noting that it took over eight years for the decision to be issued from the time of the incident.
Zelinda Doria discovered she was pregnant in November 2016. Fifteen days later, Doria’s employer told her to commence her parental leave, when she was just seven weeks into her pregnancy.
No paid parental leave
Doria went to the Human Rights Commission initially, and a mediation was held but her complaint was not resolved. She subsequently resigned from her role. This meant she was not eligible for paid parental leave because she had not worked enough hours in the six months prior to her delivery date.
She filed her claim in the HRRT in March 2018. The employer applied to strike out her claim on the basis that the HRRT had no jurisdiction to deal with it, because it constituted a parental leave complaint under the Parental Leave and Employment Protection Act 1987 (PLEPA). That application was dismissed, and the decision was upheld by the High Court and Court of Appeal.
Doria claimed her employer had subjected her to discrimination on the basis of sex and, in the alternative, disability. Her employer claimed they were entitled to put her on early parental leave under the PLEPA.
Pregnancy discrimination
Pregnant women are protected from discrimination on the basis of their pregnancy under the Human Rights Act 1993 (HRA) and PLEPA. Under the HRA, an employer is prohibited from terminating an employee’s employment or requiring them to resign due to their pregnancy.
However, the HRA states that an act or omission is not unlawful if it is authorised or required by law, in this case the PLEPA. Section 14 of the PLEPA provides an employer has the right to appoint a date of commencement of primary carer leave where the conditions of the section are met.
The HRRT held that the actions taken by the employer were taken because of Doria’s pregnancy. The employer failed to engage with Doria about alternative work or options for her to manage her pregnancy while at work. There was no evidence that the employer considered options such as special leave under the PLEPA or annual leave. The failure to consider ways to accommodate Doria’s pregnancy was detrimental.
In relation to her resignation, the HRRT found the employer’s decision to place Doria on early primary carer leave with no notice, no consultation, no medical information and no risk report – and contacting her while she was on leave to remind her of her obligations – were the material causes of her resignation.
Human rights damages
The employer’s decision to require Doria go on parental leave under s. 14 of the PLEPA was unjustified and had significant consequences for Doria, including removing her eligibility for paid parental leave.
The HRRT awarded Doria $75,000 for humiliation, loss of dignity and injury to feelings, as well as $15,467 for pecuniary losses and $9,303 for loss of benefit.
Fiona McMillan is a Partner in the Employment Law team at Lane Neave in Auckland. Abbey Lohrey is a Senior Solicitor at Lane Neave in Auckland, specialising in employment and health and safety law. Sarah Wadworth is a Special Counsel at Lane Neave in Wellington, specialising in family and employment law. Andrew Shaw is head of the Employment Law team at Lane Neave in Christchurch. Andy Bell is a Partner at Lane Neave in Wellington, specialising in dispute resolution and litigation.
