Terminating a pregnant employee during her probation period

The plaintiff had filed an application claiming that her former employer, Union Print Company Limited, terminated her contract of employment immediately after informing them that she was  pregnant. The company dismissed her allegations, and claimed that her termination was strictly connected with her work performance.

The company essentially argued that  the plaintiff, who was employed as a sales executive on a full-time basis, had failed to satisfy the contractual obligation imposed on her, requiring her to make at least €75,000 per year in sales.. Moreover, the company also claimed that the plaintiff was still during her probation period at the moment of termination, and  all relevant laws and regulations related to probational termination, whilst an employee was pregnant, had been observed.

In its judgment, the Tribunal started by making reference to Article 12A (c) of subsidiary legislation 452.91, which holds that, “In any proceedings,  where  the  employee  establishes  before the Tribunal, facts from which it may be presumed that here has been direct or indirect discrimination related to her condition, it shall be for the defendant to prove that the dismissal was based on a good and sufficient cause  and  in  the  absence  of  such  proof  on  the defendant’s part, the Industrial Tribunal shall uphold the complaint.”  The Tribunal therefore noted that, in cases related to the termination of a pregnant employee - such as the case-at-hand, where the employee had just informed the company that she was pregnant - it was up to the employer to prove that the employee was being dismissed for a good and sufficient cause, irrespective of whether the probation period was still ongoing.

In the statement of facts presented before the Tribunal, the company held that during the course of her employment, company representatives had drawn the plaintiff’s attention on several occasions, regarding client-handling and performance shortcomings. In fact, in the termination letter sent to her, the company had specifically indicated that she was being dismissed due to her lack in performance.

Therefore, the Tribunal had to determine whether the employee’s performance shortcomings constituted  a good and sufficient cause for her employment to be terminated. During the course of the proceedings it was established that the plaintiff had made a mere €9,500 in sales during her 6 month stint with the company. The company had furthermore given her two or three verbal warnings and a written warning which indicated that “a marked improvement” was required in order for her to achieve the target indicated in her employment contract.

In her testimony, the employee stated that  at the commencement of her employment,  the laptop provided by the company was not functioning properly. A representative of the company from the IT department in fact confirmed that it took them one week to resolve the issues with her laptop. Other evidence presented by the plaintiff had also proven that no similar action was taken by the company against other employees who had failed to meet sales targets.

The Tribunal noted that although the contract of employment had established two sales targets, that is, €75,000 for the first twelve months and €120,000 for the second twelve months, the contract did not further sub-divide the targets on a monthly or quarterly basis. The Tribunal thus stated that what was to be “expected as the norm” by the company was not imposed as a contractual obligation. If the company wanted to assess the performance of its employees during the probation period, it should have divided the sales target accordingly.

Therefore, the Tribunal decided that the plaintiff was dismissed without a good and sufficient cause and as a result ordered Union Print Company Limited to pay her  the sum of €10,846 as compensation for her unfair dismissal.

Author: Joseph Mizzi

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