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Law may be problematic

By Sarah Townsend, Senior Solicitor

First published in The Press, 21 May 2008

Legislative changes designed to make it easier for women with young babies to return to the workforce may, in some cases, actually make it more difficult. 

Under law changes to be introduced later this year, employers will have to provide, where reasonable and practicable, facilities and breaks for their female staff who want to breastfeed.   Also coming into force this year is the right for employees with caring responsibilities to request a flexible working arrangement.  

On the face of it, these measures encourage women to be part of the workplace and are family friendly. 

But could they inadvertently be making it harder for women of child bearing age to gain employment? Some employers are already feeling overwhelmed by the additional compliance costs associated with the rapid changes in employment law over the past few years and may feel that this is the last straw.

Of course discrimination – both direct and indirect - on the grounds of sex, marital status or family status is unlawful in New Zealand. Direct discrimination is normally easy to identify. For example, “I’m not hiring her because she is a woman and likely to have children”.   Indirect discrimination is less so.   It occurs where a policy or practice appears neutral, but (in this instance) disproportionately disadvantages women, or women with children or other caring responsibilities.  The discrimination may not be the result of prejudice on the decision maker’s part.   In the UK, the courts have recognised that refusing to allow a woman to work part time or from home, can amount to indirect sex discrimination in some cases.

But if you are a 30 year old woman applying for a job and you are passed over in favour of a male applicant, how do you know, or indeed prove, that you have been the victim of discrimination?  Even if you are sure you have been unlawfully discriminated against, suing an organisation that doesn’t give you a job is hardly the best way to get potential employers to offer you an interview. 

Of course, any steps that encourage women who want or need to work to be able to do so while balancing their family and caring responsibilities are to be encouraged.   

However, legislation needs to be flexible, it must balance the needs of both employers and employees and not be seen as another compliance burden for employers.  

Employers should ensure that their recruitment and employment practices do not inadvertently discriminate against women who have children, or who might have them in the future.  Employers should ensure that they are familiar with the new legislation, particularly in relation to flexible working arrangements, and have policies in place for dealing with such requests. Employers will also need to be mindful not to indirectly discriminate against women when considering applications from female staff to work part time. A blanket policy against part time work should be avoided and all requests for a flexible working arrangement should be considered seriously, and on their own merits.  

Women seeking work also need to be sensitive to the business needs of potential employers.  For example, a job which requires regular client entertainment in the evening and regular overseas travel, may not be the ideal job for you if you need to look after a young family at home.  

The key to the successful implementation of these measures will be understanding and being prepared for the legislative changes, and ensuring that there is clear, open and effective communication with your workforce and  job candidates.