In our previous blog we explained what parental leave is, how to work out if you’re eligible and if so, what your entitlements are.
Having the ability to take parental leave is such a precious and momentous occasion. However, navigating the application process can sometimes be confusing, particularly if your employer is less than forthcoming in helping you figure it out. In this guide, we’ll provide an overview of the key steps and requirements involved in applying for parental leave. Whether you’re considering continuous parental leave or flexible parental leave, understanding the notice periods and evidence requirements will help alleviate your stress and minimise the risk of potential disputes with your employer.
Parental Leave Case Example
Picture this: You’re 3 months pregnant and have just notified your employer that you are pregnant and intend to take parental leave. Your employer seems supportive…at first. They tell you to keep them updated on how the pregnancy is tracking and when you want to commence leave. As far as you are aware, your employer does not have any policies or procedures in place that explain your obligations when applying for or taking parental leave. You hope for the best and rely on your employer’s verbal assurances that all is well, your job is secure, and they will support you throughout this important milestone in your life.
As your pregnancy progresses, you notify your employer of your anticipated commencement date for taking parental leave. Your employer confirms this is fine. You discuss your anticipated return to work date. Your employer confirms this is fine. Finally, that special day arrives where you commence your parental leave. Your boss smiles and waves as you head out the door.
Fast forward approximately 6 months and you are now wanting to re-commence discussions about returning to work. To your utter dismay, your employer is now resisting your return to work. They claim that you didn’t comply with the formal evidence requirements when applying for leave and therefore you are technically not “on leave.” They assert that you resigned from your position and no longer have a position to return to. Suddenly, you find yourself on the phone to an employment lawyer seeking urgent assistance and advice.
The above describes an actual dispute. The employee in question was in utter disbelief when her employer alleged out of the blue that she had failed to comply with the notice and evidence requirements for taking parental leave and as such, it did not consider her to be on leave but rather, it considered that she had ended her employment. One can only imagine the anxiety, heartache and hurt this caused the employee.
So, how can you protect yourself in the workplace? What do you need to do to ensure that your employer does not try and flip the script and try and make it impossible for you to return to work following a period of parental leave?
Read on to find out…
Notice Requirements for Continuous Parental Leave
If you’re planning to take continuous parental leave, which involves a single continuous period of leave, you must inform your employer in writing at least 10 weeks before the intended start date of your leave.
The notice should include the duration of leave and the start and finish dates. It doesn’t matter if those dates are hypothetical or approximations. You should specify an anticipated start date and finish date. In case you’re unable to provide the required 10 weeks’ notice, it’s essential to give notice as soon as possible.
Confirming Leave Dates
It’s important to confirm your parental leave dates with your employer at least 4 weeks before the anticipated start date. If there are any changes to the dates previously communicated, notify your employer promptly (and at least 4 weeks’ prior to commencing the leave). Sometimes it may not be possible to confirm your parental leave dates within this timeframe (for example, due to complications). In those circumstances, it is expected that you will provide as much notice as possible.
Notice for Requirements for Flexible Parental Leave
Flexible parental leave allows for 30 days (6 weeks) of unpaid leave that can be used flexibly within 24 months of a child’s birth or adoption. When applying for flexible parental leave, inform your employer either at the same time as you giving notice of your intention to take continuous parental leave notice or otherwise at least 10 weeks before the flexible parental leave start date. Clearly communicate the total number of days of flexible parental leave you intend to take.
Confirmation of Flexible Parental Leave Dates
Similar to continuous parental leave, you must confirm your flexible parental leave dates with your employer at least 4 weeks before the intended start date. If providing 4 weeks’ notice becomes challenging, you are required to inform your employer as soon as possible. With your employer’s agreement, you can modify the flexible parental leave dates after giving notice.
Evidence Requirements
Employers may request evidence related to the expected date of birth, such as a medical certificate or statutory declaration. If your employer requests evidence of this kind, it is crucial that you comply. A failure to comply with the request (assuming it is a lawful and reasonable request) will likely impact your entitlement to take parental leave.
Helpful hints when applying for Parental Leave
Once you have informed your employer that you intend to take leave, it is recommended that you maintain a paper trail of all of your communications. This will include, as a minimum:
- evidence of the date you notified your employer of your intention to take leave,
- any response provided by your employer at the time,
- all subsequent communications regarding your position, potential maternity replacement, your return to work plans.
If at any stage you become suspicious that your employer is not being forthcoming with information on required processes or they are not supportive of your pregnancy and planned leave, make sure you document those concerns.
It is important to be aware that once you commence your leave, it is likely that your employer will suspend your access to your work email account and any other work systems. This is common in situations where an employee is taking extended leave, whether it be personal leave or parental leave. Given this, it is vital that you ensure you have a paper trail outside of your work email account. If your employer later tries to assert that “they had no idea you were planning to return to work” your paper trail will pay dividends in negating that argument.
If you believe you are being discriminated against in the workplace because of your pregnancy and/or intentions to take parental leave, make sure you seek proactive advice from our team at Rubix Legal. We can also assist you with applying for parental leave, liaising with your employer about your parental leave, and commencing discussions for your planned return to work.
