Losing your job is an incredibly stressful event, even more so if you are pregnant. A recent decision of the Ontario Superior Court offers some comfort to pregnant employees who are terminated, by ruling that pregnancy can be a factor in assessing the appropriate length of a reasonable notice owed to a terminated employee.
Employees are entitled to reasonable notice of termination (either working notice, where you continue to work during the period, or pay in lieu of notice, where you receive a lump sum payment) when their employer terminates their employment without cause. The amount of reasonable notice is meant to reflect the amount of time an employee will need to find a new, comparable job. The reasonable notice period is usually calculated based on a list of factors, called the Bardal factors: age, length of service, character of employment, and availability of similar employment. Courts frequently state that these are not the only factors that can be considered, but few decisions have identified other factors when determining the reasonable notice period.
In Nahum v Honeycomb Hospitality, Ms. Nahum, a 28-year-old employee with four and a half months of employment at Honeycomb, argued that her pregnancy should be considered as a factor in determining the length of the reasonable notice period. Given that she was five months pregnant at the time she was terminated from Honeycomb, Ms. Nahum argued that she would not be able to find new employment in a short period of time.
The employer’s position was that Ms. Nahum would not need more than two months to find a new job. The employer argued that the court should not find that pregnancy could increase the length of a notice period because that would require the court to assume that her potential new employers would discriminate in their hiring practices by refusing to hire Ms. Nahum because she was pregnant.
The court disagreed with the employer. Ms. Nahum was awarded a five-month notice period, above what might have been expected based on previous court decisions. In making that determination, the trial judge noted:
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.
The trial judge relied on a few other cases that accepted that pregnant employees are likely to have difficulty finding comparable employment after termination. In addition, the plaintiff brought evidence demonstrating that she, in fact, had faced difficulty finding a comparable mid-management position.
The court’s decision provides a rare expansion of the Bardal factors, allowing courts to consider pregnancy as a factor when determining the length of a reasonable notice period. Importantly, the court emphasized that pregnancy does not automatically extend the notice period; rather, it will depend on the particular circumstances of the case, as with all the Bardal factors. Pregnant employees who are terminated should consult an employment lawyer to determine their rights and the appropriate action to take to secure those rights.
We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated and believe that you have not received reasonable notice.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]