Pregnancy – When must an employee inform the employer of pregnancy?

Employers are often placed in a difficult situation with regard to the pregnancy of an employee.

The situation may arise because even at the interview stage, the employee is aware of the pregnancy, but fails to disclose this to the employer. Another scenario is that an existing employee fails to disclose her pregnant condition to the employer until the last available minute, thus placing the employer in the undesirable situation of having to find a replacement in a hurry so that work can continue while the pregnant employee is on maternity leave.

The Basic Conditions of Employment Act states only that the employee must inform the employer of the requirement for maternity leave at least one month before the maternity leave is to commence. There is no legislated onus on the employee to disclose her pregnant status at any other time. In some cases, employers have taken the dismissal route.

In one instance, a probationary employee was dismissed on the grounds that she had failed to disclose the fact of her pregnancy at the interview stage, and had aggravated matters by failing to disclose it to the employer during the probationary period. The employee stated that she was afraid to disclose the fact of her pregnancy, in case her application for employment was ruled unsuccessful on the grounds of pregnancy, and that she was afraid to disclose it during the probationary period in case she got dismissed on the grounds of pregnancy.  It turned out that her fears were well founded.

The employer maintained that the failure to disclose her pregnant condition had caused a breakdown in the trust relationship, and the employee was dismissed on those grounds. We know that generally, the onus to prove a fair dismissal rests with the employer, but in this particular case it was ruled that if the employer is aware that the employee is pregnant, and the employee can show that the dismissal was possibly for that reason, then the dismissal will be automatically unfair. The employer vigorously maintained that the dismissal was purely because the trust relationship had broken down, and that the employee was not dismissed because of a pregnancy.

However, the Court did not agree, and it was found that the true reason for the applicant's dismissal in this case was because of the pregnancy, and not because the trust relationship had broken down, and therefore the dismissal was ruled to be automatically unfair. In another instance a fixed term contract employee was invited to apply for a vacancy for a permanent post that had arisen in the workplace.  Before the post was actually advertised, the employee inform her supervisor that she was pregnant.  She did apply for the permanent post but was informed that the application was unsuccessful. The court ruled that the dismissal was automatically unfair, having been effected for a reason related to pregnancy.

Another case involves an employee who was in an advanced state of pregnancy, and she complained that she was tired.  The employer dismissed her on grounds of incapacity, the Court found that the dismissal was based on pregnancy, and was found to be an automatically unfair dismissal.

Finally a further instance involved a pregnant employee who wishes to take additional time-off for a confinement, and it was agreed by the employer that she could take her annual leave.  The employer later retracted this permission and informed the employee that she need not return to work after the birth of the child.  The applicant referred a dispute of unfair dismissal, and although dismissal was denied by the employer, the court concluded that the applicant had been dismissed for a reason related to pregnancy, thus resulting in an award of automatically unfair dismissal.

Such dismissals can be a very expensive matter for the employer, because usually and especially in dismissals related to pregnancy, the maximum of 24 months salary is awarded as compensation. Employers should be very careful before dismissing pregnant employees, because there is every chance that even if there are other reasons for dismissal, the employer will have to have a clearly it tight case in order to prove that the dismissal was not in any way related to the pregnancy of the employee.

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