Severance entitlement of a pregnant employee

Effect of pregancy on termination notice

Brian Johnston
Question: If an employee who is part of a scheduled downsizing informs us she is pregnant, can we proceed with her termination? Her severance payment would only be about four months — not long enough to get her maternity leave. Does this increase the severance obligation?

Answer: Yes, the severance obligation will likely be increased.

A court considers many factors, including the employee’s age, type of work, education and length of service to determine how difficult it will be for the employee to find similar employment. Reasonable notice is designed to give the dismissed employee an opportunity to find other employment.

Recent case law shows pregnancy is akin to the factors outlined in the Bardal decision which determine an employee’s notice entitlement. The Ontario Superior Court of Justice in Ivens v. Automodular Assemblies Inc. recognized it would be more difficult for a pregnant employee to find another job, and accordingly pregnancy should be taken into account when determining reasonable notice.

While the notice period for a pregnant employee may be longer, there is no absolute obligation to provide employment or notice until maternity leave begins. In this case, the four months may have to be increased, but not necessarily up to the time her maternity leave begins.

For more information see:

Ivens v. Automodular Assemblies Inc., 2002 CarswellOnt 2093 (Ont. Div. Ct.).

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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