Forcing Staff To Start Parental Leave Early

A very recent (April 2025) ruling by the Human Rights Review Tribunal (HRRT) reminds employers how much care is required both procedurally and substantively to legitimately be able to send an employee on early primary carer leave.

A further risk as demonstrated is that this kind of issue can be the jurisdiction of the HRRT as opposed to just the Employment Relations Authority (ERA). While the HRRT timeframes are far longer in dealing with cases, the awards are far more punitive - up to $350,000.00.

Primary Carer Leave (aka maternity leave) normally begins on the due date of the baby, or the actual date of the baby - whichever is sooner. This date may begin up to 6 weeks earlier if directed by the employee's healthcare professional.

However, Section 14 of the Parental Leave Employment Protection Act (PLEPA) states, that where, by reason of pregnancy, a female employee is unable to perform her work to the safety of herself or others or is incapable of performing her work adequately, her employer, if no other suitable work is available, may, subject to section 9(2), direct her to commence her primary carer leave on such date as the employer appoints (including a date that is earlier, by more than 6 weeks, than the expected date of delivery). Section 9.2 merely determines from which date the 20 weeks of paid parental leave starts.

As always, the principle of Good Faith and the obligation to consult properly with the employee apply.

The case which led to the ruling going against the employer, strongly summarized here, was about an employee who took some sick leave in the weeks after she found out she was pregnant. The employer called for a meeting to discuss her medical condition already two weeks after she found out she was pregnant. The meeting ended abruptly and without an outcome, got side-tracked by another issue, which was unrelated to the pregnancy.
The employer then unilaterally decided to be able to rely on s14 PLEPA (see above) and directed the employee to start early parental leave the next day. The employee requested that decision be withdrawn, and for the parties to consult about alternative solutions. The employer refused.

After substantial back-and-forth between the ERA, the HRRT, to determine which authority would be allowed to rule, and which clauses applied, the HRRT made a final ruling.

It tested the following questions:

Was the employee "qualified" for the work (including fit enough from a medical point of view)?
Answer: She was. There was no finding based on a medical assessment suggesting that she was not fit to do her work.

Did the employer subject the employee to detriment or terminate her employment because of her pregnancy?
Answer: They did.

Was the employee subjected to detriment, in circumstances in which others would not be?
Answer: She was

Were the actions of the employer authorised or required by the PLEPA 1987?
Answer: No, they were not

While we won't traverse the detail around the findings in each question in this newsletter, you will likely have a good idea about why those were the answers.

The employer was held responsible and accountable on all accounts, and the ruling included a determination that the company had been in breach of the Human Rights Act, and financial penalties totalling roughly $100,000.00 were awarded to the employee.

If you are considering applying the “forced early paternity leave” option, consultation in good faith needs to be evident and not rushed. Forcing an employee on early parental leave does disadvantage the employee. It needs to be extensively investigated and consulted upon and be an informed decision. Simply relying on the PLEPA having the carve out to allow the employer to instigate the leave is not alone enough.

If you are considering such action, we strongly recommend contacting us to discuss your situation.