Employer’s Termination Of Pregnant Employee Not Found To Be A Human Rights Violation
The termination of a pregnant employee seems like a situation where a human rights violation could very well be found. However, in a recent case before the Human Rights Tribunal of Ontario, the Tribunal found that when a pregnant employee is terminated for reasons outside of her pregnancy, the employer may be safe from claims of discrimination. In order for the employee to demonstrate that she was discriminated against on the basis of pregnancy, she had to establish the pregnancy was a factor in the employer’s decision to fire her.
The Tribunal’s Analysis
Section 5(1) of the Human Rights Code (the “Code”) prohibits discrimination on the basis of sex, stating: “The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”
In regarding to her termination, the Tribunal found the employer “provided a credible, non-discriminatory explanation for his actions.” It is not necessary for the Tribunal to determine whether the respondent was unfair in their assessment that the applicant lacked the technical and management skills necessary for the position. Fair or otherwise, the evidence supports the employer’s position that the decision was made for non-discriminatory reasons.
Case Background: A Brief Period of Employment
The employee was hired as a software development manager and was terminated only nine days later after the employer found her to be unsuitable for the job. The employee was working under a probationary period at the time of her termination. She was in her third month of pregnancy when she was hired for the job, something she disclosed to the employer when she accepted the position.
The employer testified they started to have concerns about her work shortly after she commenced employment. They were specifically concerned with her technical expertise as well as that she did not seem to be a “leader” of the team. While the employer stated they discussed these concerns with the employee, she responded by stating that she had no opportunity to address the issues, adding that she had insufficient coaching.
Employment Termination During Pregnancy in the UAE
Termination because of pregnancy is prohibited across all UAE legal systems. However, termination during pregnancy is not expressly prohibited – which creates an important legal and practical distinction for both employers and employees. In other words, a pregnant employee can be lawfully dismissed – but only if the dismissal is not connected to her pregnancy or maternity leave.
There are three separate employment law frameworks operating in the UAE: UAE Federal Employment Law, DIFC Employment Law, and ADGM Employment Regulations. This distinction matters enormously, especially when it comes to how the law treats such terminations, who bears the burden of proof, and what remedies are available if a claim is made.
Comparison of UAE Legal Frameworks
| Jurisdiction | Legal Provision | Burden of Proof | Remedies |
|---|---|---|---|
| UAE Federal Law | Federal Decree Law No. 33 of 2021, Article 30(8) | Employee must prove the dismissal was caused by her pregnancy. | Article 47 caps compensation at three months’ total salary. |
| DIFC Law | DIFC Employment Law No. 2 of 2019, Article 40(1) | Employer must demonstrate that the dismissal was unrelated to pregnancy. | Article 61(5) authorizes the DIFC Courts to make a declaration of rights. |
Key Legal Limitations under Federal Law
- The law is silent on who bears the burden of proof.
- In practice, the employee must prove the dismissal was caused by her pregnancy, which is often extremely difficult.
- The law does not entitle the employee to maternity pay, lost benefits, or reinstatement in the event of termination during pregnancy.