Can an Employer Terminate Your Job While You are Pregnant?

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On Behalf of Law Offices of Eric A. Boyajian | October 11, 2023 Work Agreements & Policies

The Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act make it unfair to dismiss you because you are pregnant, take family-related leave, or have health issues related to the pregnancy. Likewise, the same consideration must be given to pregnant women as to other employees whose medical conditions have an impact on their work. That said, your job can be terminated during pregnancy for reasons not relating to the pregnancy itself.

Unfair Dismissal

An unfair dismissal occurs when the employer terminates an employee’s job due to a reason that is not fair or, or if it is fair, without following reasonable procedures. This gives the employee an opportunity to make an unfair dismissal claim. However, the employee needs to have been in the job for two years before they can claim unfair dismissal. This clause does not apply if the termination was what is termed ‘automatically unfair’, which will be discussed separately.

If the employee resigned from the job, it is not possible to claim unfair dismissal except in the case of ‘constructive dismissal’. This happens when the employee was forced to resign due to the situation at work being untenable. Along with constructive dismissal other cases of dismissal include:

  • A termination, whether or not notice was given.
  • The end of a fixed-term contract, which was not renewed on identical terms. The courts may deem this unfair dismissal if the employee met the qualifying period before being dismissed and can be suitably engaged by the company.

If an employer changes an employment contract’s terms and conditions significantly, this is referred to as ‘imposed change’. It is the equivalent of terminating the contract and reemploying the employee under a new contract.

Automatic Unfair Dismissal

There are some reasons for dismissal that the courts automatically accept as unfair dismissal. Examples are taking leave during pregnancy for pregnancy-related causes, maternity, paternity, and parental leave, requesting flexible working arrangements, whistleblowing, and belonging to or carrying out certain trade union activities.

Claims for automatic unfair dismissal can be made even if the employee just started the job and there is no need to meet the two-year requirement; even one day on the job suffices, provided the reason falls under the definition of automatic unfair dismissal. For example, if you started working today and your boss found out that you are pregnant, you cannot be fired for this reason.

Dismissal During Pregnancy

A pregnant woman can have her job terminated provided the rules of fair dismissal are followed. This requires a reason that is fair and that procedures must be properly followed. The dismissal cause may not be connected to the employee being pregnant. For instance, being ill from the pregnancy and needing sick leave for it, taking time off work for antenatal appointments, or performing below par due to pregnancy fatigue are unfair reasons for dismissal. If she is dismissed for a pregnancy-related cause, this would be considered unfair dismissal and discrimination.

Pregnancy and Performance

Pregnancy can come with a host of symptoms, both mental and physical, that may cause the employee to feel ill or fatigued. This may require taking time off, working shorter hours, or being accommodated at work, such as being allowed to lie down when necessary. The safety of the mother and baby are paramount, and the employer is expected to make some adjustments. For example, you may be permitted to come to work late due to morning sickness that makes it difficult for you to get to work on time.

It is incumbent on the employer to protect the health and safety of the mother and the unborn child. Your pregnancy should be handled in terms of health and safety and not poor work performance, sickness, or incapacity. You should inform your employer in writing when you become aware of your pregnancy. This is best accomplished with a sick note stating that you are pregnant and may not be able to perform to standards and hours at times due to pregnancy-related illness.

Then it is up to the employer to do a risk and a health and safety assessment, to identify what adjustments might be needed. Pregnant women need extra rest and experience extraordinary tiredness during the day, in many cases. Not all pregnancies are the same but all of them should be treated fairly and not put the pregnant woman’s job at risk.

If you have been unfairly dismissed, contact Eric A. Boyajian (attorney) for assistance.

Visit our offices at 450 N Brand Blvd #613, Glendale, CA 91203.

Call us today for a free consultation, on (818) 839-5969.