Pregnancy, Probation and Dismissal

Can an employer terminate the employment of a pregnant employee during her probationary period?

Yes, but an employer will need to prove that the dismissal was wholly unrelated to the pregnancy. Ordinarily, in order to bring a complaint seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act, 1977, an employee will need to have at least 12 months’ service. However, Section 6 of the Unfair Dismissals Act provides that a dismissal shall be deemed to be unfair if it resulted wholly or mainly from the “employee’s pregnancy, attendance at antenatal classes, giving birth or breast feeding or any matters connected therewith.”

Dismissal during probationary period

In A Hairdresser -v- A Hair salon (ADJ0016046), the employee claimed that she was dismissed during her probationary period because of the inconvenience of her pregnancy to the respondent company. The respondent company refuted the claim and stated that the employee did not progress sufficiently during her six month probation period and was therefore let go.

Dismissal during probationary period – case law

The decision in McGuirk -v- Irish Garden Publisher Limited DEC-E-2007-031 is an authority for the principal that an employee’s poor work performance can give rise to the termination of the employment even where the employee is pregnant. The Adjudication Officer noted in that case that there was a history of poor performance, including the threat of termination, which the complainant was on notice of well in advance of the pregnancy being known to the employer.

In McGuirk the Equality Officer said: “It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of the pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy.”

Dismissal during probationary period – expectations

The Workplace Relations Commission acknowledged that the respondent’s position was that the dismissal of the complainant was solely due to her failure to meet professional expectations. There was a complete contrast in the party’s interpretation of her performance during the probation period. Notwithstanding that, the Adjudication Officer in this matter noted that, by virtue of the protections afforded to a pregnant employee, an employer must demonstrate that a dismissal during the probationary period is unconnected to the pregnancy. By the respondent company’s own admission, the complainant’s absence from work, on pregnancy related sick leave, was part of the problem. The Adjudication Officer therefore found, on the balance of probabilities, that, in the absence of any acknowledged or written performance reviews of the complainant’s performance and/or any other disciplinary processes for poor performance, it is difficult to see any justification for an abrupt dismissal. Accordingly, the Adjudication Officer found that the complainant’s dismissal resulted wholly or mainly from her pregnancy. That being the case, the claim of unfair dismissal was considered well founded and the complainant was awarded €6,000.

Dismissal during probationary period – the takeaway

The Pregnancy Directive 92/85/EEC prohibits dismissal of a pregnant worker unless “duly substantiated grounds for her dismissal” are provided in writing. This was not the case here, there were no issues or warnings raised and the basis of the respondent’s decision to dismiss was the inconvenience of her pregnancy.

The takeaway for employers in this matter is that they are entitled to terminate the employment of a pregnant employee during the probationary period but must have sufficient written evidence justifying such a decision.