In a recent 2021 decision, Nahum v. Honeycomb Hospitality Inc., the Court considered the impact of a pregnancy upon reasonable notice.
At the time of the termination without cause, the employee had been employed for just 4 months in a mid-level managerial position. She earned $80,000 per year. She was 28 years old and 5-months pregnant at the time of her termination. The employee argued that she should be entitled to 8 months’ notice while the employer argued that she should be entitled to 2 months’ notice. Notably, there were no allegations of discrimination on the basis of sex under the Ontario Human Rights Code. Rather, the argument was that she should be entitled to more notice because of the termination when she was pregnant. In other words, the employee sought to add “pregnancy” to the list of established factors; namely, character of employment, length of service, age and availability of similar employment.
The Employer argued that an increased notice period based on pregnancy at the time of termination was problematic for several reasons.
First, that concluding pregnant people are less likely to become employed implies that future employers will violate human rights legislation in their hiring decisions. Second, that in order to reach a conclusion that pregnancy is a disadvantage in a job search; actual evidence was required beyond speculation. Third, that considering pregnancy when determining the reasonable notice period is problematic as it opens the door to the inclusion of other factors that may impact an individual’s professional success.
The Court disagreed with all three points. On the first point, the Court stated that an employer may legitimately prefer a candidate who is not pregnant for a bona fide business reason and that preferring an employee who is not pregnant over a candidate who may require leave is not necessarily a human rights violation. On the second point, the Court indicated that a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because employers want to fill a need in their organization with someone who will be present to fill that need. It was open to the Court to take judicial notice of the fact that it will take longer to find alternative employment if an employee is pregnant. On the third point, the Court indicated that nothing in the argument recognized the “inherent barrier that pregnancy poses to most job searches.”
The Court also stated that there was no principled reason as to 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 the pregnancy is likely to negatively impact their ability to find alternative employment. The end result was that the employee was awarded five (5) months of notice (more notice than her entire length of employment!). The pregnancy was a significant factor in determining the reasonable notice period resulting in a much higher notice period.
For employers, it is important to remember that while an employer is entitled to terminate an employee who is pregnant for bona fide business reasons, or for cause, it is crucial to have very well-documented and objective grounds to justify the termination, failing which there could be an allegation of discrimination on the basis of sex contrary to human rights legislation. A contract of employment, with a valid termination without cause provision, would have also provided some protection to the employer in this case.