Reasonable to believe that pregnancy a barrier to finding work

A recent Superior Court of Justice decision clearly illustrates that an employee’s pregnancy at the time of her termination is a real factor when it comes to deciding on the length of a notice period upon termination. 

In Nahum v. Honeycomb Hospitality Inc., the plaintiff was about five months pregnant when she was dismissed without cause by her former employer. The 28-year-old had been employed for four and a half months when she was let go. According to court documents, she argued she was entitled to eight months’ notice prior to termination while the employer maintained that “a two-month notice period is generous”.

The plaintiff’s main contention was that her pregnancy should lead to a longer notice period.

The judgment notes that “[t]he reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age f the servant and the availability of similar employment, having regard to the experience, training, and qualification of the servant”. And, “[t]o this list of factors, Ms. Nahum seeks to add pregnancy,” the judgment adds.

Five-month notice period

Working with just the four factors cited other than pregnancy – factors relied on in all of these types of cases – my sense is that the court was likely going to award about three months of notice: the decision points to a series of precedents that lead to this view.  However, because of the employee’s pregnancy, the judge awarded her a five-month notice period. That is significant, especially considering her time at the employer was quite short.

In her ruling, Justice Jasmine T. Akbarali states: “At the time of her dismissal, Ms. Nahum was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two-month period proposed by Honeycomb given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.” 

She added, “there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.”

Court documents show that, after the birth of her child, the woman took only a two-month break from looking for work, then applied to at least 75 positions without success. She also started a “side hustle” of selling gift baskets with self-care products designed for new mothers. 

‘Significant steps to find work’

“Clearly Ms. Nahum has taken significant steps to find work, and earn an income, including launching her own business,” Justice Akbarali writes. “Unfortunately, she has not yet been successful in those efforts.”

This decision clearly tells employers that pregnancy increases the notice period owed. It does not matter if the pregnancy was the reason for termination; this decision simply recognizes that a pregnant woman will have more difficulty finding other work.

• Longer notice periods should be the norm for pandemic terminations
• Six 2020 employment law cases that will resonate this year
• A $1.2-million lesson about the dangers of fixed-term contracts

What makes the decision interesting is that it is the first very thorough decision on this particular point, coming on the heels of other decisions that have not quite reviewed the “pregnancy factor” with as much thoroughness. The judge’s ruling is also a reminder that setting a notice period is more art than science, an observation that has been made in the courts numerous times before. 

Thus, Justice Akbarali acknowledges that she has no specific proof that any employer will actually choose not to hire an employee (or this plaintiff) because of pregnancy.  Despite this, she correctly, in my view, does what judges are called upon to do in these cases, that is, come to a reasonable conclusion about how a pregnancy might affect the employee’s ability to find new work. 

A reasonable decision

The court’s conclusion is entirely reasonable and one most reasonable people would readily agree with without demanding more positive proof.  Indeed, to ask for positive proof that an employee would not be hired is to ask the impossible: no respectable employer would give evidence that they would choose not to hire someone because they are pregnant.

In this sense, the judgment is notable not just for the way it deals with pregnancy but with how it approaches notice periods in employment law more generally. There are other decisions where courts take notice factors (such as age) and downplay certain accepted truisms (for instance, that an older employee will have more difficulty securing new work) on the basis that there is no “evidence” that this has actually affected the plaintiff (or any other employee for that matter). 

The Nahum decision should be a reminder that judges have limited tools and assumptions they must work with to set a fair notice period when an employer does not give an employee actual, reasonable, working notice.