In Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, the Ontario Superior Court weighed in on whether a terminated employee’s pregnancy has an impact on determining the reasonable notice period.
The Plaintiff, Sarah Nahum, was terminated without cause after four and a half (4.5) months of employment. She was twenty-eight (28) years old and five (5) months pregnant at the time of termination. Ms. Nahum earned a salary of $80,000 and held the title of “Director of People and Culture,” which the judge found to be a mid-level management position. The sole issue on a summary judgement motion was the reasonable notice period and what impact, if any, the plaintiff’s pregnancy had on its calculation.
Impact of the pregnancy
Justice Akbarali found that, on the facts before her, the plaintiff’s pregnancy was an “important factor” in assessing the reasonable notice period, along with the character of employment and her brief length of service.
After reaffirming the oft-cited principle that the notice period is to be determined by the circumstances existing at the time of the dismissal, Justice Akbarali stated:
“Objectively, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because most employers want to fill a need in their organization with someone who will be present to fill that need.”
Justice Akbarali took note of “the inherent barrier that pregnancy poses to most job searches,” specifically the employee’s “impending” need to take a leave of absence shortly after commencing any new position. However, the judge stressed that pregnancy should not automatically lengthen the notice period in every case, such as in the case of someone searching for a job to commence in the future or someone with very specific skills who may reasonably expect to find an employer willing to accommodate their upcoming need for a maternity leave.
In awarding a five-month notice period, Justice Akbarali stated it was unreasonable to expect that Ms. Nahum could obtain new employment in the two-month period proposed by the employer given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.
This case indicates that courts are willing to consider an employee’s pregnancy at the time of dismissal when determining the reasonable notice period. However, the court’s analysis is always highly fact specific and thus pregnancy will not serve to automatically extend an employee’s notice period. Unfortunately, Justice Akbarali did not state what the notice period would have been had the plaintiff not been pregnant, so it remains unclear how greatly the pregnancy impacted the notice period awarded in this case. Future decisions will shed light on whether the Nahum case will be distinguished on its facts or if it will be regularly relied upon in extending the notice period in cases involving dismissed pregnant individuals.