Parental Leave – When Does an Employee Occupy a “Key Position?”

Are you an employee looking to take a period of parental leave or, alternatively, an employer who has an employee intending to do so? You may be wondering what your entitlement or obligations are.

In this article we consider an employer’s obligation to keep open an employee’s usual job until the end of the employee’s parental leave unless certain circumstances apply.

The Law

Under section 41 of the Parental Leave and Employment Protection Act 1987 (‘the Act’), when an employee takes a period of parental leave in excess of 4 weeks, the Employer is presumed to be able to keep open the employee’s usual job until the end of the employee’s parental leave.

This is unless the employer “proves” that the employee’s position cannot be kept open because:

• a temporary replacement is not reasonably practicable due to the “key position” occupied by the employee within the employer’s enterprise; or
• of the occurrence of a redundancy situation.

This article considers what is meant by a “key position” and not “reasonably practicable”.

Key Position

The Act provides that, in determining whether a position is “key” or not, regard may be had to, amongst other things:

• the size of the employer’s enterprise; and
• the training period or skills required in the job.

Cases which have considered this section provide further clarification:

1. The words unless the employer “proves” that the employee’s position cannot be kept open places a heavy onus on the employer (to establish this fact).

2. The rights of the employee are intended by the Act to outweigh the rights of the employer unless the employer can meet the required onus.

3. A key position is one which is of such a crucial and pivotal nature to the efficient operation of the   employer’s business that it is required to be filled on a permanent basis.

It has been suggested that, where a person with elementary skills is employed in a large organization, it will be more difficult to prove that they occupy a “key position”.

However, the position may be different where the organisation is a small one or where the employee possesses specialist skills or training.  However, even in either of those cases, the employer must still demonstrate that the position can only be filled on a permanent basis due to the nature of the position itself.

In one case, a mid tier bank employee in a small New Zealand town was held to occupy a “key position” as she was a skilled employee whose role required a lengthy period of training, such skills and training being required for her position.

However, in a number of other cases, employees have not been found to occupy “key positions”, including a librarian, legal adviser and personal assistant to a Chief Executive.

4. A position can qualify as “key” but it may still be “reasonably practicable” to temporary replace that employee.

For example, where an employee within an organization could be temporarily transferred to cover the period of leave, the employer could not establish that a temporary replacement was “not reasonably practical”.  This was even though the employee taking leave occupied a “key position”.

Not reasonably practical to replace

1. When considering whether it is “reasonably practicable” to replace the employee temporarily, the question is not a subjective one (i.e. what the employer believes is practicable).

Instead, the test is an objective one – what a reasonable person, standing in the shoes of the employer, would conclude.

2. The test is not whether it would be impracticable or inconvenient to temporarily replace the employee with another employee for the period of leave.

Instead, the focus is on the level of skill required for the position and the size of the employer [that makes it necessary that the position only be filled on a permanent basis].  Any difficulties with replacing the employee, including operational inefficiencies, costs, or finding a temporary replacement, are not relevant unless they are due to the nature of the position itself.

In one case, for example, the fact that the employer was losing several of its staff at the same time, thereby putting remaining staff under pressure while new staff underwent training, was not held to be sufficient to demonstrate that the employee held a “key position”.

Likewise, difficulties in finding a person willing and able to replace an employee on a temporary basis did not suffice as it would have still been reasonably practical to fill the position if a temporary replacement had been available.

Further, in another, the fact that a temporary employee had previously provided leave cover precluded the employer successfully arguing subsequently that it was not practical to fill the position temporarily.

In summary therefore, the wording of the Act, together with subsequent case law, makes it clear that in many cases it is likely to be difficult for an employer to establish that they cannot keep an employee’s position open for a period of parental leave.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Employment matters, please contact Hannah Carey at Parry Field Lawyers hannahcarey@parryfield.com (03 348 8480).