The back-to-work demotion

Being moved into a lower role when you return to work after parental leave isn’t just frustrating — it’s unlawful. We discuss your rights, how to deal with a demotion and how you can resolve the issue.

Discrimination relating to pregnancy and returning to work is unlawful. Unfortunately, this treatment is still fairly common.

A 2014 Australian Human Rights Commission report, Supporting Working Parents, reveals that half of all mothers experience discrimination in the workplace — whether during pregnancy or parental leave, or on returning to work — despite longstanding laws against such treatment.

The impact of a demotion when returning to work

Facing a demotion upon returning to work from maternity leave can have a very real impact. It comes at such a pivotal point of both your personal and working lives that it can affect your career, your future job prospects and your home finances.

Due to the difficult nature of this issue, many women tend to resign and look for other work, leaving their difficulties unreported. A massive 91% of mothers who experience discrimination don’t make a formal complaint, according to the Supporting Working Parents report, so we’re aware of only the tip of the iceberg.

It’s important to understand that many women experience this type of discrimination when they return to work, and that you don’t have to accept a demotion of any sort. Rather, you have the right to return to the same job. If that role no longer exists, you’re entitled to an available position for which you’re qualified and suited, and this job should equal your previous role in status and pay.

How to prevent demotion when you return to work

Women who return to work after having a baby are in a vulnerable position, so they should consider taking some pre-emptive action to avoid having to deal with a demotion.

  • Don’t take company policies as the final word. Many organisations have great policies around returning to work, but they don’t always act on them. It’s a good idea to seek clarification about your specific circumstances by talking with a relevant management or human-resources representative.
  • Discuss your plans before you leave. Speak to your manager about what will happen when you return from maternity leave before you go. Talk about whether you’d like to work part-time or take advantage of other flexible working arrangements. Communicating from the outset is key to a successful return to work.
  • Ask for any agreements to be put in writing. A number of changes can occur during the months you’re on parental leave. For example, a new manager might not honour the agreements you negotiated with your previous manager. Verbal agreements should be put in writing and outline specifics, such as whom you’ll report to, which days you’ll work, what your remuneration will be and who has signed off on this arrangement.
  • Know your rights. Several pieces of legislation prohibit this type of discrimination. These include the federal Sex Discrimination Act and state laws such as the Victorian Equal Opportunity Act and the Fair Work Act. There have even been cases in which women have been demoted to positions with the same pay, but different status (such as a different reporting line, for example), and this has been found to be unlawful.

What to do if your employer tries to demote you

It’s important to seek advice about this issue, because it’s a complex area to navigate. Maurice Blackburn’s approach is to try to resolve things amicably — a strategy that not only educates employers about their obligations, and the risks and consequences of failing to meet them, but also helps women avoid the difficult task of having to find an equivalent position elsewhere. If the parties can’t reach a resolution, we can make an anti-discrimination application to the Fair Work Commission.

You may be tempted to try to resolve the issue yourself; however, we suggest you seek advice as a first step. This smart move can keep you in a strong negotiating position and help you avoid straining the employment relationship if there’s a path forward. Putting your frustrations in writing, for example, or resigning on the spur of the moment can be detrimental to your case.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Jenna Vardi

Jenna Vardi is an Associate in Maurice Blackburn's employment and industrial law practice, based in Melbourne. She is listed by the prestigious Doyles Guide as part of the only first tier law firm for employee & trade union representation in Victoria in 2017. Jenna is a passionate advocate of workers’ rights committed to achieving fair and just outcomes for her clients. Jenna represents and provides advice to employees, including senior executives and public sector employees in all types of employment matters. This includes assisting clients’ before they start employment to negotiate employment contracts and deal with non-compete and restraint of trade clauses matters.  Jenna also assists clients’ to navigate through complex issues that arise during the course of employment such as disciplinary matters and workplace investigations, contract claims, bullying, discrimination and sexual harassment. When employment comes to an end, she advises and represents clients in relation to redundancy, unfair dismissal and unlawful dismissal and assists them to obtain favourable negotiated exits. Jenna is keen to ensure her clients understand their rights, entitlements and legal options and seeks to provide clients’ with clear pragmatic advice tailored to their objectives. She understands that clients desire swift commercial outcomes that protect their health and reputation and seeks to resolve matters quickly and confidentially. Jenna has successfully negotiated many favourable out of court settlements for her clients. While the majority of Jenna’s matters resolve through confidential negotiations without the need to issue court proceedings, where litigation is necessary and recommended, Jenna has experience litigating matters in the High Court of Australia, the Federal Court of Australia, the Supreme Court of Victoria, the County Court of Victoria, the Victorian Civil and Administrative Tribunal and the Fair Work Commission. She has successfully obtained injunctions in the Federal Court of Australia and Supreme Court of Victoria and regularly represents clients in conciliation conferences and mediations. Some of Jenna’s successes include: assisted a Chief Executive Officer defend unfounded allegations of serious misconduct, make a formal complaint about a botched workplace investigation into allegations and obtain a six figure compensation package assisted a health professional who was dismissed for expressing a political opinion on social media be reinstated to his position obtained court orders preventing Victoria Police from retiring a police officer on unsubstantiated grounds of ill health and that it pay our legal costs assisted a number of clients stop their former employer’s attempts to enforce non-compete clauses and excessive restraint of trade clauses that would prevent them from working in their fields represented a senior public servant defend allegations of bullying and maintain his employment without any adverse consequences or findings, and obtained significant compensation for a client who was sexually harassed by her colleagues. Before joining Maurice Blackburn, Jenna worked at a number of national law firms, interned in the Appeals Chamber of the International Criminal Tribunal for Rwanda, the Australian Mission to the United Nations, and the Australian Human Rights Commission. She also volunteered at a number of community legal centres and was the co-convenor of the Victoria Branch of Australian Lawyers for Human Rights. She currently volunteers with the Asylum Seeker Resource Centre and is the co-chair of the Law Institute of Victoria Employment and Industrial Law Sub-committee. Jenna is currently on parental leave.  Memberships & accreditations Law Institute of Victoria member LIV Employment and Industrial Law Sub-committee Co-chair Australian Lawyers for Human Rights member Asylum Seeker Resource Centre volunteer Maurice Blackburn Women's Network Women in Unions Committee Co-chair Maurice Blackburn Diversity Committee member ...

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