In the case of Nahum v. Honeycomb Hospitality Inc., the employer, Honeycomb Hospitality, terminated their Director of People and Culture, Sarah Nahum when she was five months pregnant.
Entitlement to Notice of Termination
The notice period is intended to bridge a terminated employee to their new position. Courts consider the employee’s age, length of service and the character of their employment when determining what notice period is appropriate.
Ms. Nahum had been with Honeycomb for just four and a half months. She was 28 years old and made $80,000 per year. She was terminated without cause, did not have a valid contract governing her termination entitlements, and therefore was entitled to notice in accordance with the common law.
Honeycomb argued that an appropriate notice period for Ms. Nahum was two months.
Job Searching While Pregnant
Ms. Nahum was left to look for a new job while visibly pregnant. Prior to the birth of her baby, she applied for 36 jobs and got one interview. She was not offered the job for which she interviewed and suspects that it was because she was eight months pregnant at the time.
Ms. Nahum took two months off from her job search after the birth of her baby at the end of February 2020. At the time of the summary judgment motion, she had applied for another 75 jobs without success. At that point, she was looking for a job during the pandemic.
Impact of COVID-19 on the Notice Period
The court confirmed that the notice analysis looks at the time an employee is expected to take to find a new job at the time they are terminated. Ms. Nahum was terminated in October 2019, prior to the pandemic, and therefore her notice period was not lengthened due to the difficulties in her job search created by the pandemic. They did not exist at the time of her termination, which is the relevant time for the determination of the notice period. The court here used the same analysis as the court in Yee v Hudson’s Bay Company, which we blogged about here.
Impact of Pregnancy on Notice
In considering the impact of Ms. Nahum’s pregnancy on her notice entitlement, the court noted past cases which ruled that “fairly or not,” being pregnant did not enhance an individual’s immediate employability.
Honeycomb argued that it would be problematic for the court to find that pregnancy is a barrier to employment, as it implies that prospective employers will violate human rights laws in making hiring decisions. The court found that there are reasonable, bona fide reasons why a company may not hire a pregnant person, namely: “An employer seeking to fill a position is likely to have an immediate need for someone in the role. The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization.” at para 43.
The court awarded Ms. Nahum 5 months of notice.
Takeaways for Employers
The best way for employers to protect themselves from notice disputes, like the one Honeycomb got into with Ms. Nahum, is to ensure that their new hires sign valid employment contracts before they start work. A properly drafted employment contract will bring certainty to an employee’s termination entitlements – even if they are pregnant!
While not discussed in this case, there is also always the risk of a human rights violation when terminating a pregnant employee. An employer should never terminate an employee because they are pregnant – to do so will usually be a violation of that employee’s human rights, exposing the employer to a human rights claim.
If you have questions about terminations get in touch for a consultation!