The Impact of Pregnancy on Notice Periods: Nahum v. Honeycomb Hospitality Inc
The Ontario Superior Court’s recent decision in Nahum v. Honeycomb Hospitality Inc. demonstrates the impact that pregnancy can have on assessing reasonable notice owed to employees terminated on a without cause basis.
While the often cited Bardal factors (i.e., an employee’s length of the service, age, nature of the position, and availability of similar employment in view of the employee’s experience, training and qualifications) are key considerations in assessing notice periods, these factors are non-exhaustive, and courts will take into account all relevant factors at the time of termination in determining the appropriate amount of notice.
In the present case, Ms. Nahum had only been working for 4 ½ months as Director of People and Culture (a mid-level managerial position) when she was let go. At the time of her termination, she was 28, earning $80,000.00 annually, and was approximately five months pregnant. On summary judgement, Honeycomb argued that a two-month notice period was appropriate, while Ms. Nahum sought eight months of notice.
The Court found that her age, employment background, and qualifications would make her competitive in the job market, factors that tend to reduce notice periods. However, the Court then considered the most contentious issue – the impact of pregnancy on the appropriate notice period.
Justice Akbarali analyzed several past decisions in which pregnancy had been a factor considered in assessing notice periods, including Harris v. Yorkville Sound Ltd. in which it was noted that the employee’s pregnancy did not enhance her immediate employability.
Honeycomb argued that pregnancy should not be a consideration. Firstly, they argued that a finding that pregnant women would be less likely to find re-employment implies that prospective employers would violate human rights legislation in their hiring process. A lengthier notice period because of such actions would then be holding Honeycomb financially responsible for the human rights violations of others. The Court rejected this argument, finding that there could be a number of bona fide needs of an organization, such as having immediate need to fill the role, which would disadvantage the pregnant individual yet not constitute a human rights violation.
The Court also found that Ms. Nahum was not required to provide evidence in order to conclude that pregnancy is often a disadvantage in a job search. Justice Akbarali relied on previous cases which also found, without requiring evidence, that pregnancy likely increases the time to find new employment due to organizations usually hiring to fill an immediate need. Ultimately, she found that she was able to take judicial notice that pregnant women face additional challenges when looking for work, without requiring the Plaintiff to introduce supporting evidence.
Consequently, Justice Akbarali considered not only Ms. Nahum’s brief length of service and character of employment, but also the fact that she was five months pregnant when she was terminated, which was considered an “important factor” in awarding her five months of notice.
This decision is an important reminder to employers that courts will consider all relevant factors at the time of termination in assessing notice periods. Employers should turn their mind to the impact of a pregnancy when assessing severance options for a pregnant employee, separate and apart from any human rights related issues which may be engaged and should be considered.