Stuart Rudner here with another Rudner Law employment law update.
So, how does an employee’s pregnancy factor into the assessment of their severance if they’re let go?
We know that the entitlement to notice of dismissal, or pay in lieu as we often call it, severance, is based on many factors. Contrary to popular belief, it’s not based solely upon length of service, so any rule of thumb, like the ever popular one month per year of service, is simply wrong and should not be used to determine someone’s entitlement. We know that there are a number of core factors, or Bardal factors, as we often refer to them, which include length of service, the employee’s age, the character of their employment and the availability of similar employment. Those are the key factors, but we also know that the courts have made it very clear, those are not exhaustive, and they will consider any relevant factor when determining what the reasonable period of notice will be.
So, is the fact that an employee is pregnant at the time of dismissal a relevant factor? According to one recent Ontario decision, the answer is yes, and that decision follows several others that reach the same conclusion.
The case is Nahum v. Honeycomb Hospitality, in that case the plaintiff was 28 years old, she’d only been employed for four and a half months, at the time of dismissal, she was five months pregnant, and the issue, or the primary issue, before the court was whether the employee’s pregnancy impacted their entitlement to severance. So the court reviewed many of the precedents and I’m going to read a few quotes from this decision, which in turn quoted previous decisions because they are quite relevant and instructive.
First of all, and these are all direct quotes, “it seems to me that if part of the concern in the exercise of setting reasonable notice is the availability of other work and the possibility of the dismissed employee being hired for it, then pregnancy has to be a consideration”. And the court also said pregnancy was a fact which, fairly or not, did not enhance her immediate employability. Honeycomb then took the position that if we accept that it’s going to take a pregnant employee longer to find new work, we’re essentially accepting that employers are going to discriminate against them in breach of their human rights, but the court rejected that argument, saying “the prospect of a new employee, who will shortly require a lengthy leave, will be unappealing to many employers and may not meet bonafide needs of their organization”. And by inserting the word bonafide there, they’ve basically taken this out of the realm of human rights discrimination because in that case it might be a bonafide occupational requirement, which would not be a breach.
A couple more quotes, “objectively, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because most employers want to fill a need in their organization with someone who will be present to fill that need”. And the court goes on to say, “it is open to me to take judicial notice that pregnant people face additional challenges when looking for work. Judicial notice may be taken of this conclusion because it is a fact so notorious, or generally accepted, as not to be the subject of debate, among reasonable persons”.
So, clearly the court considered the fact that a pregnant employee is going to have a harder time finding new work, in the generality. Of course every case is open to evidence, which will prove or disprove that theory, but that’s the starting point. In that case, the judge awarded five months of notice. Unfortunately she did not comment on what the employee would have received if she wasn’t pregnant, so we don’t know how much of a difference it made. But the point here is that pregnancy will be a factor to be taken into account.
I do want to note one thing, a lot of employers are scared to let an employee go when they’re pregnant, and I think it’s important to remember, there is nothing unlawful about dismissing an employee when they are pregnant. However, it is entirely unlawful to dismiss them because they are pregnant. And that is a very important distinction.
The bottom line, if an employee is pregnant at the time of dismissal, their pregnancy will be a factor to be considered in assessing the reasonable notice period, but as we always say, the entire issue of how much notice is reasonable can be avoided through the strategic use of contracts, specifically if you have an enforceable contract, with a valid termination clause, that can establish the amount of notice to be provided, then we don’t have to consider what is reasonable and we don’t have to consider factors such as pregnancy. The problem is of course that many contracts and many termination clauses are not enforceable.
So employers, we can help you and work with you to make sure that you have an enforceable contract with a valid termination clause in place, to limit and control your severance obligations. We can also work with you at the time of dismissal, to make sure you understand your obligations and minimize your risk. Employees, if you’re presented with an offer of employment we can review it for you to make sure you understand how it’s going to impact your rights in the future and if you’re let go, we can work with you to make sure you get the best severance package possible in the circumstances. Either way we’d be happy to work with you, so please feel free to reach out at any time, you can contact me directly or email us at firstname.lastname@example.org.
That’s all for today, take care, stay safe.