Maternity leave good opportunity for talent development

European court decision around training, promotions should make employers think twice about writing off women on mat leave
|Canadian HR Reporter|Last Updated: 04/07/2014

When an employee goes on maternity leave, it’s generally assumed she’ll be — for the most part — out of touch with the office.

But that’s a difficult assumption to make, especially since the maternity leave experience can really differ from person to person, according to Jennifer Beeman, co-ordinator, women in employment, at CIAFT (the Council for Women’s Access to Work) in Montreal.

“Within the experience of maternity leaves, there can be women who discover, much to their surprise, that they want to slow down, they kind of go domestic. But there are other women who absolutely kind of go stir crazy — they want to get back to work as soon as they’re physically ready.”

So what happens if a woman on maternity leave still wants to be involved with her workplace, whether through part-time work, side projects or training and development opportunities?

Is it discrimination to automatically exclude?

In a recent decision, the Court of Justice of the European Union ruled it is “discrimination on grounds of sex” to automatically exclude a woman on maternity leave from a training opportunity that may advance her career.

In the case in question, Loredana Napoli had been admitted into a competitive training course, but was excluded because she was on a compulsory mat leave. Consequently, her colleagues, who were able to take the course before her, could be promoted to a higher position with better pay.

The court ordered that equivalent remedial courses be provided so Napoli could receive the training and be promoted without delay.

“In this way, the career development of such a female worker would not be hindered in relation to that of a male colleague who was successful in the competition and admitted to the initial training course,” said the court in its decision.

Of course, it’s a decision that has no legal bearing on employers in Canada. But it raises some interesting questions about the assumptions made when it comes to women on maternity leave — and the impact it may have on their future careers.

Taking a maternity leave can trigger gender disparities and negative effects for a woman’s career path in a number of different ways, said Beeman.

“Without question, maternity leave and having children has a major impact on women’s working life. We can see it statistically in many different ways, and it marks the beginning of a real wage gap between men and women, among other things. Men’s salaries tend to go up — what we call the ‘daddy bonus’ — and it goes up more than can be identified by having longer working hours,” she said.

“It can be the beginning of a career gap too, and these things kind of have a cumulative effect over a woman’s working life. There are always exceptions to all general trends… But, generally, you can really see the impact of children on women’s work in almost all statistics regarding women’s participation in the labour force.”

To work or not to work?

Of course, there are many women who are not concerned with work while they’re on a maternity leave — and employers must respect that, said Patrizia Piccolo, a lawyer at Rubin Thomlinson in Toronto.

“Some employers don’t like the fact that someone could take up to 52 weeks of leave,” she said. “It causes tension or conflict in their workplace because it’s a long time for someone to be away. (At times), we see employers saying, ‘We want to put pressure on the employee to come back early or to work during the leave.’ And I think the proper response to that is ‘The law is the law and you can’t force someone to work during their leave or to come back early.’”

But when a woman does want to maintain some involvement with the workplace, it can be a valuable opportunity for career development. However, it also raises a number of tricky issues and considerations.

“You really want to respect the responsibility placed on the employer to replace you and the person who is replacing you,” said Beeman.

“And you have to be realistic about what you want to commit to. It can be a really good time to develop new projects, to do the background work for things you’ve always thought that the company or the organization could do, but you’re so busy with your portfolios that it’s not something you’ve had the time to delve into. You could look at developing new projects, research on new clientele… you can look at whether it’s possible to participate in developmental meetings.”

Depending on the organization, there could also be opportunities for training and development, according to Alison Konrad, Corus Entertainment chair in women and management, based in London, Ont.

“Technology gives us a big leg up here because lots of companies put their training on the intranet. There’s lots of important training modules that are done that way and you just log in and you can have very rich training — there can be video involved, there can be self-testing… Being co-located is not a barrier anymore to training,” she said.

Even in-person training opportunities could be an attractive possibility, depending on the individual’s situation, said Konrad.

“Being part of all-day offsite training where selected high-potential people are together with senior leaders, that’s where you want to be face-to-face. And if a woman has demonstrated interest — or even if she hasn’t said it directly — letting people know that this opportunity to go to this one-day thing is available… I don’t think it would be a violation,” she said.

“I know there are a number of women who would jump at that (chance) and others who would say no. And it would be very important that saying no would not have any negative repercussions.”

If a woman is going to stay involved, however, it’s very important to be clear about the expectations on both sides, said Beeman.

“It’s very difficult to have a halfway position between going back to work and not going back to work — are you working or are you not? And if you are working, then there are other things you have to declare to EI.”

EI, employment standards and legal considerations

When a woman stays on in a part-time capacity during her mat leave, it raises issues on two different fronts, said Piccolo: Her employment insurance (EI) and her protections under employment standards.

When it comes to EI, there is a relatively new “working while on claim” pilot project that affects parental leave, said Piccolo.

“Previously, if someone was working during their parental leave, dollar for dollar what they earned would be deducted from their EI benefit,” she said.

“What’s happening now, under the pilot project, is an employee is able to keep 50 cents of their EI benefits for every dollar they earn, up to 90 per cent of their weekly insurable earnings that were used to calculate their EI benefit. After the 90 per cent threshold, then they deduct dollar for dollar.”

But the most significant issue is when it comes to employment standards.

“Under the (Ontario) Employment Standards Act, the leave is unpaid, there’s a bunch of rules and rights that employees have… and it’s those rules and rights that sort of create a bit of a conflict when an employee decides that they are going to or would like to work during that leave,” said Piccolo.

Under Ontario’s rules, employees are entitled to up to 52 weeks off and guaranteed job protection — or a comparable job if their position no longer exists when they return. But if they work while on leave, all of those employee rights and employer obligations are null, said Piccolo.

“Under the Employment Standards Act, the moment that someone returns — even if it’s on a part-time basis — the leave is over,” she said. “So the entitlements/protections that go along with the maternity/parental leave for the employee are done. The employee’s back at work.”

That’s why it’s so important to clearly define the employment relationship if the woman is going to be doing any part-time work during a maternity leave.

“It’s really about (defining) it so we’re not left in a situation where an employee thinks they have certain rights but they don’t, or an employer thinks they have certain obligations but they don’t,” said Piccolo.

“Define the length of the leave, and define what you will or will not permit an employee to do during that leave.”

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