Pregnant Employee Entitled to Longer Notice Period: Ontario Court

In Ontario, an employee who is terminated without cause is presumptively entitled to reasonable notice of termination. In theory, “reasonable notice” refers to a length of time, but most employers choose to provide pay in lieu of notice. As a result, “reasonable notice” refers in practice to an amount of money. For example, if an employee’s notice entitlement is six weeks, the employer can elect to provide six weeks’ pay instead of six weeks’ working notice (although, to be clear, the employee will be said to have received reasonable notice in either case).

The Ontario courts determine an employee’s notice entitlement with reference to the so-called Bardal factors, which are:

1. the employee’s age;

2. the length of the employee’s service;

3. the character of the employee’s work; and

4. the likelihood that the employee will be able to secure comparable employment, taking into account the employee’s experience, training, and qualifications

In a recent decision, Nahum v Honeycomb Hospital Inc, 2021 ONSC 1455 https://canlii.ca/t/jdgd6, the employee was pregnant at the time of her termination (and the employer was aware of the pregnancy). At the time of her termination, she had been employed for almost five months. The employee argued that her pregnancy ought to be considered in addition to the four Bardal factors (and result in a longer notice period). The employer objected, arguing that any consideration of the employee’s pregnancy would be a highly disruptive departure from the well-established Bardal framework. The employer also argued that, because the Human Rights Code prohibits discrimination on the basis of sex (which includes the fact that a person “is or may become pregnant”), the employee’s pregnancy ought to have no impact on her employment prospects.

The Court found for the employee, but took care to consider the employee’s pregnancy within the Bardal framework. The Court noted that “pregnant people face additional challenges when looking for work”, primarily because “most employers want to fill a need in their organization with someone who will be present to fill that need.” As a result, the Court determined that the employee’s notice entitlement was five months.

While the decision in Nahum is significant, it is far from revolutionary. On the one hand, the Court demonstrated a willingness to consider the unique challenges faced by pregnant people seeking work, which might once have fallen outside the scope of “experience, training, and qualifications.” On the other hand, the Court made a point of noting 1) that pregnancy will not automatically increase an employee’s notice entitlement and 2) that pregnancy is distinct from other conditions and personal characteristics, in that a pregnant applicant will almost certainly be away from work in the near future. In this respect, pregnancy differs from other conditions and personal characteristics that may affect employment prospects, such as height and physical attractiveness.

The takeaway, then, is simply that a pregnant employee may be entitled to a longer notice period. While the courts may yet be willing to consider the employment implications of other conditions and personal characteristics, the impact of Nahum will be limited to pregnancy, at least in the immediate term.