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Communtity Law Manual | Employment: Conditions & protections | How you’re protected while pregnant or on parental leave

Parental leave

How you’re protected while pregnant or on parental leave

Protection from being dismissed

Parental Leave and Employment Protection Act 1987, s 49

Your employer can’t dismiss you for being pregnant, for applying for parental leave, or for being on parental leave.

What if my pregnancy prevents me doing my job?

Parental Leave and Employment Protection Act 1987, ss 9, 14, 16, 26, 49

If your pregnancy prevents you doing your job properly or adequately, your employer can transfer you temporarily to another job. You can’t be dismissed for being pregnant.

If no other suitable work is found, your employer can require you to start your parental leave early. Even if this is more than six weeks before your baby’s expected due date, you’ll still be entitled to 12 weeks’ primary carer’s leave after your baby is born, and your entitlement to extended parental leave also won’t be reduced.

What happens to my job if I’m on parental leave?

Parental Leave and Employment Protection Act 1987, ss 40, 41

This depends on how long you’re on leave for:

  • Leave for four weeks or less – If you’re taking parental leave for four weeks or less, and it’s the first period of leave you’ve taken for this particular child, the law assumes your employer is able to keep your job open, unless the employer can prove that your position has become redundant (for redundancies, see “Leaving or losing your job” in the chapter “Starting and leaving a job”).
  • Leave for more than four weeks – If you’re taking parental leave for more than four weeks, the law assumes your employer is able to keep your job open, unless they can prove:
    • that it’s not reasonably practicable to get a temporary replacement because you occupied a key position in your employer’s business, or
    • that your position has become redundant.

What if I decide not to go back to work?

Parental Leave and Employment Protection Act 1987, s 46

If your job has been kept open but at the end of the leave period you don’t return to work, the law treats your employment as having ended at the start of the leave period.

What happens if my employer can’t keep my job open?

Parental Leave and Employment Protection Act 1987, s 36

If your employer notifies you that your job can’t be kept open during your parental leave, they must give you a preference for re-employment after the parental leave finishes. This means that during the six months (26 weeks) after your leave they must give you preference over other applicants for any position that’s vacant and that’s substantially similar to your old position.

Can I be made redundant while I’m on parental leave?

Parental Leave and Employment Protection Act 1987, ss 40, 41, 51, 52

Yes. However, if you challenge the decision the employer must prove that the redundancy situation arose after they notified you (in response to your original parental leave notice) that your position could be kept open (see “Notifying your employer that you want to take parental leave” in this section). Your employer must also prove that there was no prospect they could appoint you to a vacant position that was substantially similar to your old job.

Your employer will also have to meet the usual requirements for any redundancy – that is, the decision and the decision-making process must have been fair and reasonable. The requirements for a fair process include, for example, consulting with you and giving you a chance to have input into the decision. (For redundancies, see “Leaving or losing your job” in the chapter “Starting and leaving a job”.)

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