It is not always illegal to fire an employee on maternity leave. Employers can lawfully terminate an employee on maternity leave for any non-discriminatory reason (or no reason at all). Still, they cannot terminate an employee because she went on maternity leave. The latter is workplace discrimination, which is unlawful. In other words, in the absence of a discriminatory reason, an employer is free to decide if it wants to keep an employee during pregnancy leave.
What Is Maternity Leave? Maternity leave is job-protected leave just for the birth mother before the birth, whereas parental leave is for both parents after the birth. Maternity leave is also known as pregnancy leave.
In other words, human rights law in Ontario does not provide an absolute shield to terminations during maternity leave. Human rights law is only concerned with maternity leave terminations if employers terminate an employee because she went on maternity leave.
The Ontario Human Rights Code (“the Code”) prohibits actions that, among other things, discriminate against workers who take maternity leave. Specifically, section 5 of the Code reads as follows:
“Every person has a right to equal treatment concerning employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability”. Regarding maternity leave terminations, as per the Code, discrimination on the grounds of sex includes discrimination because of pregnancy.
When is it illegal to fire someone on maternity leave?
As discussed above, it is illegal to fire a worker because she took maternity leave. More specifically, to prove a termination because of maternity leave was illegal, an individual must show:
- that she was pregnant and went on leave or was going to go on leave;
- that she was fired; and
- her decision to take leave was the reason, in whole or in part, for her termination.
The third part of the above-noted test is generally the only issue in controversy in any case. Therefore, this article will focus on that issue only.
It is not always easy to prove an employer fired an employee in whole or partly because the employee was pregnant and taking maternity leave. An employee must show that the employer considered the employee’s pregnancy as a factor in deciding to terminate their employment. Rarely, however, will an employer flat-out tell the employee they are being fired because of pregnancy or maternity leave. Instead, the employee will have to show that the employer violated her Code rights on a “balance of probabilities“, i.e., it is more likely than not that the employer terminated the employee’s employment because she was pregnant/went on maternity leave. Clear, convincing, and compelling evidence is required to satisfy the balance of probabilities test.
However, it should be noted that proving discrimination is not insurmountable. For one, the employee need not prove that the pregnancy or leave was the sole factor leading to the termination. Second, direct evidence of the discrimination is not required, as the discrimination can and will more often be proven by circumstantial evidence and inference.
Example Case (Pregnancy & Dismissal)
As an example of a case where the employer was found not to have discriminated against an employee who was pregnant and who was terminated, consider Fleming v. Salon 130 Inc. (2015 HRTO 743 (CanLII)).
In that case, the employee argued that she had met her onus of establishing that it is more likely than not that the employers terminated her due to her pregnancy. The employee submitted several facts in her favour: she was dismissed several days after telling the employer that she was pregnant, her employer’s reaction to her announced the pregnancy, and prior statements made by employees becoming pregnant while working in the industry.
On the flip side, the employer argued that the employee’s pregnancy had nothing to do with the decision to terminate her employment. In support of its position that the termination was due entirely to the employee’s job performance, the employer pointed to the difficulties she had completing hair colour treatments promptly, problems she had in her interactions with clients, colleagues and her supervisor, and the fact that she was given three disciplinary letters addressing these problems before her termination.
As a result, the Ontario Human Rights Tribunal found in favour of the employer that the employee did not establish that her pregnancy was a factor in the decision to terminate her employment.
The Tribunal held that while it appreciated that the circumstantial timing of the pregnancy announcement and termination was sufficient to suggest that there could be a nexus between the employee’s pregnancy and her termination, it was the events that took place after the employee announced her pregnancy that ultimately resulted in the employer’s decision to terminate her employment. Worth noting, I would personally put forth that the three disciplinary letters torpedoed her case.
Take Away: First and foremost, an employer should not terminate a worker because they are pregnant or plan to take pregnancy leave. However, suppose an employer decides to terminate a pregnant employee/someone or pregnancy leave for business reasons or performance issues. In that case, it should take steps to document evidence that will show it decided to terminate solely based on those business reasons/performance issues. The employer should consider that it will look very poorly upon them if they cannot muster reasonable enough evidence to convince a tribunal that the decision to terminate was not discriminatory. Obviously, as we saw above, discipline letters work quite convincingly if they are reasonable and legitimate.
Where there is a lack of evidence in support of non-discriminatory reasons for a termination, the employee is much more likely to succeed than the employer.
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Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.