A Google search will return a range of suggestions on how to respond to the question “are you pregnant” in your social life. Whilst some of them are good for a laugh, all of them are usually completely inappropriate in an employment context.
In the context of employment, expectant mothers usually need answers to the following questions.
1. Am I legally obliged to tell my prospective employer I’m pregnant?
It is mostly during the early stages of pregnancy that this question arises, as it is often obvious to a prospective employer during the later stages of pregnancy.
If you are pregnant there is no legal obligation for you to volunteer that fact during an interview unless you know that the job you are applying for is inherently and unavoidably dangerous to your health and safety whilst pregnant. Such situations are rare, as a prospective employer seeking candidates for such an inherently dangerous role should ask you if you are pregnant, resolving the issue of whether you need to volunteer it. More about that below.
2. Am I morally obliged to tell my prospective employer I’m pregnant?
This question assumes the role applied for is not inherently and unavoidably dangerous to your health and safety whilst pregnant.
It is a matter of personal preference. Some women prefer to be up front about the situation and trust that the prospective employer will not discriminate against them when choosing the right person for the job. On many occasions their experience is entirely positive. I have a colleague who was employed during the later stages of pregnancy. Her employer knew she was right person for the job and was willing to wait for her, offering her extremely flexible working arrangements when she returned to work.
Then there is the other side of the coin. Horror stories abound of women experiencing a distinct change in a prospective employer’s attitude following disclosure of the information.
It is inherently difficult to measure how many pregnant women are actually discriminated against when seeking employment, but we would be naïve to think that it rarely happens.
Women in the very early stages of pregnancy who feel they would be misleading their prospective employer by keeping the information secret should consider this – the sad reality is that 1 out of every 4 pregnancies end in miscarriage. That is why many women choose not to tell anyone other than their immediate family that they are pregnant until they are past the most risky stage.
3. Can a prospective employer ask me if I’m pregnant?
The only time a prospective employer is able to ask if you are pregnant (and insist on answer) without being at risk of a discrimination claim is if there is something inherent about the role that is directly relevant to your health or safety. For example, if your role required you to be in contact with chemicals or other materials that the employer knows would cause you harm during pregnancy, it would be necessary for the employer know in order to be able to take steps to protect your health and safety. Of course if you know the requirements of the role you would likely be expecting such a question at the interview.
But what about when you do not think it is at all relevant to health and safety issues in the role? You can certainly refuse to answer, claiming it’s irrelevant. However, your evasion is an answer in itself.
There is a better approach. You may wish to respond by expressing light-hearted surprise at the question – something like “oh, I didn’t realise pregnancy would be relevant to this role… if someone ended up pregnant in this role, would it pose a particular health risk to them or their baby?” Such a response does not suggest the answer to the question as starkly as a simple refusal to answer. And the prospective employer’s answer at this point will be very telling. If they abandon the question and move on, there may be hope. However if they insist on receiving an answer it might give you a sense of the type of employer they are, and of your likely happiness in that role.
4. When should I tell my employer I’m pregnant?
If you know that your employment requires you to conduct tasks that may be harmful to your baby, or if you are uncertain in that regard, the question of volunteering that information becomes particularly important. As an employee you have certain obligations under the Occupational Safety and Health Act 1984 (WA), including:
- ensuring your own health and safety at work; and
- reporting any situation that could constitute a hazard to any person (including yourself and your unborn baby).
In short, you should immediately inform your employer. Depending on their response, the next question may become relevant.
5. Can my employer change my job when I’m pregnant?
There are laws which stipulate that an employer must not take “adverse action” against you because of your pregnancy. “Adverse action” includes:
- terminating your employment;
- altering your employment position to your detriment; and
- treating you differently to other employees – for example, by excluding you from certain employment opportunities or benefits.
If this happens you may have the ability to make a claim against your employer.
If it is impossible for you to work within your current role without risk to your health and safety, your employer is entitled to change your role. Your employer may also be entitled to require you to take unpaid leave if there are no suitable alternative roles. It all depends on your individual employment circumstances.
For more information about this Update please contact partner Tom Darbyshire on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.