During the period of probation, an employer may dismiss an employee without justified cause, given that if the employee has been in employment for at least one month, the employer gives the employee one week’s notice prior to the termination.

The Protection of Maternity (employment) Regulations establish the minimum requirements to safeguard the employment rights of pregnant employees, the right of employees who have recently given birth and those employees who are breastfeeding, with the scope of improving the health and safety of pregnant employees.

On July 9, 2020, the Industrial Tribunal decided that a pregnant employee’s dismissal during her probation period was in breach of the protection of maternity (employment) regulations and liquidated damages to the dismissed pregnant employee for €10,000, payable by the accounting firm that had dismissed her while she was on maternity leave.

The tribunal’s decision was overturned on appeal by a judgment delivered on May 12, 2021, by Judge Lawrence Mintoff (case ref number 28/2020 LM). The facts were as follows:

In April 2018, the employee attended an interview with an accounting firm. She was chosen and it was agreed that she was to start her employment with the firm in October of the same year. She was employed on an indefinite basis with six months’ probation.

A few weeks into her employment as an audit supervisor with the firm, while she was on maternity leave, the employee was informed that a decision was taken to terminate her employment based on performance during the said probatory period. This gave birth to the industrial claim which she pursued against the employer who had dismissed her during her maternity leave.

The employee claimed that the real reason for her dismissal was related to pressure from third parties which was related to her partner and that the employer had further fabricated the allegations about her performance being poor. It transpired that one of the firm’s clients, a good client, had a falling out with the employee’s partner. Indeed, the employer’s client had presented an ultimatum to the employer, whereby it threatened to stop supplying work to the firm, unless it terminated the (pregnant) employee’s employment with the firm.

The employer presented a different version of facts and argued that an employee may be dismissed on sufficient and just cause; even if the said employee happens to be pregnant or if the said employee would have just given birth. The employer stated that the decision to dismiss the pregnant employee was principally because she had made a series of material errors at her new workplace as well as the possibility of a conflict of interest which arose between the pregnant employee’s partner and one of the firm’s clients. Based on such, the employer decided that the employee was to be dismissed during the probation period, and indeed she was.

The Industrial Tribunal did note that the employee’s mistakes could have had very serious consequences for the firm

The Industrial Tribunal found that the employee did not do any work which would have caused a conflict of interest, however, it did note that the employee’s mistakes could have had very serious consequences for the firm.

Notwithstanding, the tribunal was not convinced that the employee’s errors reached the sufficient level required by the law to justify the termination of employment.

On appeal, the employer claimed that the fact that the employee had not presented her employer with a medical certificate issued by her doctor meant that she could not benefit from the protection awarded to women in terms of such protection of maternity (employment) regulations as she could not be effectively considered to be a pregnant person and enjoy the protection offered by the law − even though she was evidently seven months pregnant when she started working for the firm.

The employer further sustained that the employer is only bound to prove that it dismissed the pregnant employee for just and sufficient cause if the employee showed that there were facts from which one could presume that there was direct or indirect discrimination related to the employee’s condition – her pregnancy. The employer successfully argued that the employee failed to do this, and she did not claim that her employment was terminated because of her pregnancy or because of the birth of her child. 

On the other hand, the employee argued that the terms of a probation period are different for a pregnant employee in that the probation period for a pregnant employee is ‘frozen’. She claimed that there was no just cause for her dismissal, which happened a few weeks into her employment, after she had started her maternity leave on agreement with her new employer.

The Court of Appeal decided that the employer was correct in stating that a pregnant employee is bound to give written notice signed by her doctor to the employer confirming the pregnancy and containing the expected due date. It declared that informing the employer of the pregnancy or simply stating that her pregnancy was clearly evident by looking at her was not sufficient and did not offer the expected protection to the pregnant employee since she had not abided by the same regulation and had failed to provide her employer with notice of her pregnancy in writing.

The Court of Appeal further agreed with the employer’s argument that the employee’s complaint before the Industrial Tribunal was not based on dismissal because of her pregnancy, but rather she had based her application before the tribunal on the external pressure for her dismissal caused by the third party, being the firm’s client.

Taking the above into consideration, the Court of Appeal declared that the pregnant employee who was still on probation could be dismissed without being given reason for her dismissal, as long as she was given notice of one week. No compensation was awarded to the dismissed pregnant employee by the Court of Appeal.

Rebecca Mercieca is an associate at Azzopardi, Borg & Associates Advocates.