Can we place an employee returning from childcare leave in a different department or role, such as warehouse work, instead of their original position? When a transfer becomes prohibited adverse treatment in Japan, for HR

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阿部国際法律事務所 · Accepted Answer

A transfer is not automatically unlawful, but a disadvantageous change of placement because of childcare leave is prohibited (Childcare and Family Care Leave Act, Art. 10). The MHLW guideline asks employers, as a rule, to take care to return employees to their original or an equivalent position; a placement that ordinary transfer rules cannot explain and that causes considerable disadvantage is adverse treatment.

Placing an employee who returns from childcare leave in a different department or role is not automatically unlawful in Japan. However, a "disadvantageous change of placement" because the employee applied for or took childcare leave is prohibited (Childcare and Family Care Leave Act, Article 10). The Ministry of Health, Labour and Welfare (MHLW) guideline asks employers, as a rule, to take care to return employees to their original position or an equivalent one. A transfer that cannot be explained by the company's ordinary transfer practice, and that causes the employee considerable financial or psychological disadvantage, will be treated as prohibited adverse treatment (often called maternity or paternity harassment).

Typical situations

- A replacement was appointed during the leave, and the returning employee's original post is now filled.
- The employee will work shorter hours after returning, and management wants to move them from a demanding sales role to clerical support or warehouse work.
- A manager is to return as a staff member without a title.
- The employee has told the internal help desk that they believe they were sidelined for taking leave.

1. No adverse treatment because of childcare leave

An employer must not dismiss or otherwise treat an employee adversely because the employee applied for or took childcare leave (Childcare and Family Care Leave Act, Article 10). According to the MHLW guideline, adverse treatment covers changes of placement as well as dismissal.

The MHLW guideline (MHLW Notice No. 509 of 2009) lists "making a disadvantageous change of placement" as an example of adverse treatment, alongside demotion, pay cuts and unfavourable evaluations for promotion. It treats keeping an employee from working, or giving them only menial tasks, as "harming the working environment".

Adverse treatment because of pregnancy, childbirth or maternity leave is separately prohibited (Equal Employment Opportunity Act, Article 9(3)). Where childcare leave follows maternity leave, both provisions are relevant.

2. Returning the employee to the original or an equivalent position

Employers must endeavour to take necessary measures concerning placement and other employment management so that employees can return to work smoothly after childcare leave (Childcare and Family Care Leave Act, Article 22(3)).

The guideline states that, after childcare leave, employers should as a rule take care to return the employee to their original position or an equivalent position. It adds that the placement and management of other employees should be arranged on that premise.

Appointing a replacement is fine. But the idea that "the replacement has settled in, so the employee cannot go back" runs against the guideline. Decide the post-return placement before the leave begins.

3. When is a transfer "disadvantageous"?

The guideline says that whether a change of placement is adverse treatment is judged by weighing all the circumstances, including:

- wages and other working conditions before and after the change
- commuting
- the effect on the employee's future

It then states that changing an employee's duties or place of work in a way that cannot be adequately explained by the ordinary rules for personnel transfers, causing considerable financial or psychological disadvantage, is a disadvantageous change of placement.

For example, moving a front-line salesperson to nothing but warehouse sorting on their return may be treated as adverse treatment even if pay stays the same, because the change in duties and career prospects is large and hard to explain as an ordinary transfer.

By contrast, where a company-wide reorganisation moves everyone in the same position at once, the placement may be explainable under ordinary transfer rules. The key question is whether the same criteria are applied to employees who did not take leave.

4. Shorter working hours and placement

Employers must, in principle, offer a shorter working hours scheme to employees raising a child under three who are not on childcare leave (Childcare and Family Care Leave Act, Article 23(1); a labour-management agreement can exclude some employees). Many returning employees use it.

The guideline states that moving an employee who is doing work covered by the scheme to work excluded from it by a labour-management agreement, between the date of the request and the scheduled end of the arrangement, is likely to be a disadvantageous change of placement.

Rather than deciding unilaterally that "the current job won't work on reduced hours", discuss how work and handovers can be divided with the employee.

5. Workplace conduct, and administrative action for violations

Employers must take measures, such as setting up a system to handle consultations, so that comments or conduct by supervisors or colleagues about the use of childcare leave and similar schemes do not harm the employee's working environment (Childcare and Family Care Leave Act, Article 25(1)). Adverse treatment for making such a consultation is also prohibited (Article 25(2)).

An employee can ask the Director of the Prefectural Labour Bureau for help in resolving a dispute, and the Director can give advice, guidance or recommendations (Article 52-4(1)). The employee can also apply for conciliation by the Dispute Coordinating Committee (Article 52-5(1)). The Minister of Health, Labour and Welfare can request reports from the employer and give advice, guidance or recommendations (Article 56). If an employer violates Article 10 and does not follow a recommendation, this may be made public (Article 56-2).

6. Practical points

- When deciding the post-return placement, check that you can explain why this department and these duties were chosen, for business reasons unrelated to the leave. Keep the explanation in writing.
- Even if the employee "agreed" to a transfer, a dispute may arise if the agreement was obtained without adequate explanation. Show the specific changes in pay, duties and prospects, and give the employee time to consider.
- In evaluations, the guideline treats as unfavourable evaluation a system that excludes employees from promotion selection for longer than their leave, or rating an employee lower simply because they applied for leave even though no work was actually missed.
- Hold a meeting before the return to hear the employee's wishes (shorter hours, duties, commute) and record it. This makes it easier to explain why the placement is reasonable.

7. The order in which to check a placement

Checking in the following order helps keep decisions consistent.

First, consider whether the employee can return to the original position. If so, that is the default. Next, check whether there is a business reason preventing it, such as the role being abolished or scaled down. That reason must apply equally to transfers of employees who did not take leave.

Then look for an equivalent position, meaning one where pay, title, level of duties and workplace do not change significantly. Finally, explain the change and the reasons to the employee, hear their views and keep a record. Skipping these steps and simply "putting them wherever there is an opening" raises the risk of the placement being treated as disadvantageous.

What you can do now

- For each employee going on childcare leave, decide before the leave starts whether they will return to the original or an equivalent position, and tell them.
- Arrange cover on the basis that it is temporary and the employee will return to their original duties.
- Hold a pre-return meeting and record what was discussed about shorter hours and duties.
- Put in writing the criteria for cases where the employee cannot return to the original post (such as reorganisation or downsizing), and check that the same criteria are applied to employees who did not take leave.
- Train managers on what is prohibited in the placement and evaluation of employees returning from leave.

When to consult a lawyer

- You are considering placing a returning employee in work very different from their original duties, or in a lower position.
- The employee does not accept the new placement and has objected in writing or through the help desk.
- The Labour Bureau has contacted you with advice or guidance, or about dispute resolution assistance or conciliation.
- You have received a letter from the employee's lawyer or a union demanding that the transfer be reversed or claiming damages.

Frequently asked questions

Q. Can we keep the replacement in place and put the returning employee in another department?
It is not automatically unlawful, but the guideline asks employers, as a rule, to take care to return employees to their original or an equivalent position and to arrange other employees' placements on that premise. If you use a different department, check that pay, level of duties, commute and future prospects are not worse, and that the move can be explained as an ordinary transfer.

Q. What counts as an "equivalent position"?
Neither the Act nor the guideline gives a fixed definition. In practice, the question is whether the duties, title, pay and other conditions, and place of work differ significantly from the original role. If in doubt, explain the plan to the employee in advance and hear their views before deciding.

Q. The employee wants to work shorter hours. Can we change their role to lighten the load?
Adjusting duties at the employee's request and with their agreement is possible. However, moving them, between the request and the scheduled end of the arrangement, to work excluded from the scheme by a labour-management agreement is likely to be a disadvantageous change of placement. Discuss it with the employee and keep a record.

Q. Can we remove a manager's title when they return?
Removing a title because the employee applied for or took leave is "demotion", which the guideline lists as adverse treatment. The question is whether there is a reason unrelated to the leave, such as the post being abolished in a reorganisation, and whether others in the same position are treated the same way.

Q. Does the same apply when a male employee takes childcare leave?
Yes. The ban on adverse treatment in Article 10 of the Childcare and Family Care Leave Act applies to every employee who applies for or takes childcare leave, regardless of gender. A disadvantageous transfer because a man took childcare leave is also prohibited.

Q.Can we place an employee returning from childcare leave in a different department or role, such as warehouse work, instead of their original position? When a transfer becomes prohibited adverse treatment in Japan, for HR

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