Adverse action: employee made redundant while on maternity leave

In a recent decision of the Federal Circuit Court¹, an employer was found to have taken unlawful adverse action against a female director on parental leave.

During the director’s parental leave, the employer restructured its business.

In February 2014, the director was notified by letter that her position as ‘National Customised Operations Director’ would be changed to ‘Project Director Customised’. Her reporting line was changed and she no longer had any direct reports.

In May 2014, the director requested temporary flexible working arrangements to return to work on a part-time basis in early July 2014. A few weeks later, she was advised that her request could not be approved as her position was being considered for redundancy.

In June 2014, the director was informed that her position would be made redundant in two weeks’ time, just a week before her intended return to work.

The director lodged a claim alleging that her employer had taken adverse action against her because she had exercised various workplace rights, including the right to take parental leave and to request flexible working arrangements.

The court ruled in the director’s favour on three of her claims, finding that the employer had taken unlawful adverse action against her by:

1. not returning her to her pre-parental leave position (having found that her old position was available until at least 31 August 2014) because of, or for reasons including, that she had taken maternity leave;
2. withdrawing an offer to redeploy her to an alternative position because of, or for reasons including the fact that she had made a request for flexible working arrangements; and
3. terminating her employment in June 2014 because of, or for reasons including the fact that she had made a request for flexible working arrangements.

This case highlights the importance for employers of adopting transparent and genuine processes when implementing change and being careful to ensure that the underlying reasons for the change do not include a prohibited reason, such as the existence or exercise by an employee of a workplace right.

¹ Heraud v Roy Morgan Research Ltd [2016] FCCA 185 (5 February 2016).