Can pregnancy affect probation period?

T

Tim123

Guest
Firstly apologies for the lenghtly post but I want to be clear...

My partner left her old job (where she was very well thought of) after a number of years to take up a position in another multi-national company doing the same type of work but for better pay. Naturally she was given the position based on a 6 month probation period.

A few months after starting her new job she discovered she was pregnant. Her probation period is due to end in the coming days but over the last 8 weeks she has been very sick with morning sickess, vomiting constantly and loosing over a stone and a half in weight which she could ill afford to lose as she is small and petite anyway. She went to work each day as she didnt want her employment record affected but she ultimatly had to come home early on about 4 or 5 of those days as she was not fit to work.

A few weeks ago on the advise of her employer she went to her doctor who put her out sick for 2 weeks to try and recover and rest. On her return visit this week he is advising her to take a further 2 weeks out as he is not happy with her weight loss and continuing sickness. She sent these notes/certs to her employer.

She contacted her employer by telephone and explained the situation to them and the response was that she was better off taking the time required rather than coming in and going home early as at least they knew where they stand in relation to staffing etc. Essentially "take care of yourself and come back when better."

Now she has received a very formal letter detailing her dates of going home, her last 2 weeks absence and her request for a further 2 weeks along with a request from them to attend with her direct superior and HR for a meeting to discuss the "ongoing" situation.

She is extremely upset and feels that this will be a meeting to tell her that her probation is up but they will not be making her position permanent. She has at all times been honest with them, struggled through very bad days but feels that ultimatly this meeting will be used to force her to resign or in some way penalise her.

Is there anything she can say or do to try to get them onside or basically not find herself being "walked" into a situation she wont have any option but to resign or be fired. I know the law regarding rights during pregnancy is quite strong but the tone of the letter seems to indicate this is a stepping stone for some kind of action by the company. If her probation had expired normally she would have been eligable for full pay when on maternity leave. Now she may not have a job.
 
Assume the best, prepare for the worst.The language of the letter may seem cold or formal, but there could be genuine concern & desire to help on behalf of the employer.On the other hand I'd also start reading up on unfair dismissal, e.g.
 
The formal letter would suggest to me that they are not happy - I appreciate it's outside your wifes control but they still have to run a business.

I would suggest that she beats them to the topic and when she goes into the meeting and they casually ask "How are you" that she says "I've been better - I don't think this pregnancy thing is for me - not something I'll be trying again" and laugh it off. (Regardless of whether you are planning on having a larger family) When they question her further, she perhaps should say how boring the time at home has been and has made her realise that she certainly doesn't want to be at home fulltime. She should also say that she hopes she'll return to the full health she has experienced throughout her life before the pregnancy. JMO - for what it's worth.
 
tiger said:
Assume the best, prepare for the worst.The language of the letter may seem cold or formal, but there could be genuine concern & desire to help on behalf of the employer.On the other hand I'd also start reading up on unfair dismissal, e.g.
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This link is relevant, but the focus is on the fact that while Unfair Dismissal legislation doesn't cover employees who have less than 1 years service, it does cover dismissal for reasons of pregnancy.

For this reason, I would think, technically the law is on your partners side.

However, being realistic, any company that sends a letter such as this, particularly given your partners situation, isn't all that interested in continuing the working relationship. If they really cared, it could/would have been done in a much more personal and informal manner.

Having said all that, you can see their point of view. They've hired someone to do a job, and practically by the time the probation is up, they're going to loose them on maternity leave and they'll have to go back through the whole recruitment process again.

As for the comment "assume the best, prepare for the worst", personally I'd start working on the basis of assuming and preparing for the worst.

However, given that the law is most likely on your side with regards to unfair dismissals, you should think carefully what you want from this situation now. I would be of the view that your partner has no future with this company - nor would I personally want to work for a company that has approached these matters in such a fashion.

With this in mind, consider what the best outcome from the meeting with HR and manager would be. Technically, all things considered, unless your partner is crap at her job, she'd be made permanent, and would therefore be entitled to her paid maternity leave.

Would a satisfactory outcome to this be for your partner to see what they have to say, mention that if they're pushing her out that they're looking at an unfair dismissal case (saying this directly or indirectly as the situation dictates), and eventually getting around to offering to leave if a payment in lieu of maternity leave is paid, no strings attached.

To my mind, this would be acceptable to them as they'd clear themselves of an "issue" now, and get ahead with hiring someone else who'll be around to do the job.

It may also be acceptable to your partner as she'll be paid for her maternity leave period of time, won't have to worry about work, and is free then afterwards to look for a new job, or become a fulltime mum, whatever!!!

I would suggest that pursuing a line such as this be very seriously considered.


Very briefly, this is a definite no-go. I wouldn't take this approach at all. They've called the meeting. It's for them to make whatever statements, positions known. Your partner can go in, listen to them, and leave straight away. She needs time to consider her position, and is within her rights to do this. She could also bring in an independent witness as well. Say nothing first time around until she sees the position of her employer. Then take the time outside of that, in private, to consider her position, and to follow up at another meeting.
 
Tim123, I don't know what the situation is regarding pregnancy affecting the probation period. However, as you've described it, the symptoms of her illness are all pregnancy-related and she has provided sick notes/certs for her absence. So while they may be concerned about her absenteeism, she has valid reasons for it.

The meeting may be a formality just brought about by her being absent a lot lately - eg the company may have a policy that employees absent for more than, say, 10 days in one month must see a company doctor. At the meeting, presumably it will be explained to her what is the 'ongoing' situation that they wish to discuss: is it her absenteeism, or her work performance? If it is her absenteeism, is the issue that she left early some days or that she is certified unable to work? Is it do with continuing to be remunerated while off sick during the probation period? Did she misunderstand the 'come back when you feel better' message, or was the person who said that in a position of authority to say it? What's important is that she find out from them exactly what their issue is - that way she will have a clearer understanding of the situation. She was hired because presumably at interview the company considered her to have the potential to bring long-term value to the organisation - the probation period is there so the employer can confirm that view, but a few weeks of morning sickness should not be the differentiating factor in them keeping her on or not.

Additionally, hopefully she will start to feel better during her second trimester. How long now has she been with the company (you say she was with them 'a few months' before she found out), and how many weeks pregnant is she - ie how long until the probation expires? Was her performance being evaluated before she became ill? Had she any meetings with her supervisor during that time? By the time she goes on maternity leave, how many months service will she already have provided to them? She may feel terrific when she hits 12-14 weeks, so it is important that she communicate to the company that her current symptoms are hopefully temporary.

Sorry not to have more helpful info, but I hope this post brings some support and solidarity to your partner.
 
I really don't think her employer is going to be stupid enough to dismiss her based on her continued absence which is clearly due to the pregnancy - I'm sure they'll find some other reason to justify their decision. In an ideal world, if they do tell her they are letting her go due to her pregnancy, she can take an unfair dismissal case but how long is this going to take, will future employers look unfavourably on this and what will she survive on in the interim during this very costly stage of life?

Re: independent witness. Do you honestly think her employer will agree to this? Do you think it's wise to go into the meeting so agressively ie I'm bringing a witness to confirm exactly what is said?

I feel that if she explains that this is not an ideal situation for her either that they may reconsider what they are going to say to her or go easier on her. Of course they will still raise the issues that have warranted this meeting to begin with.

IMO do be prepared but don't go in "guns blazzing".
 
Since your partner has less than one years service and if the worst comes to the worst it won't be under the Unfair Dismissals Act she can bring a claim it would be wrongful dismissal or equality act (discrimination under family status). Hopefully this wont be the case. Important to note that in a wrongful dismissal case the onus of proof is on the em/ee unlike Unfair dismissal case where the dismissal is deemed to be unfair unless proven otherwise by the em/er. It is important to be mindful of this.

Perhaps the meeting is to discuss the companies sick pay/leave policy.....have you check the contract of employment and any reference to sick pay? A lot of companies only allow 10 days paid certified sick days a year and your partner may have exceed this.

Is the probation period nearly over........was an interim meeting held? The cessation of a probation period isnt an excuse to decide to keep or fire an employee. The probation period needs to be utilised fully. I.e. If an employee isnt meeting the required standard the employer must identify this to the employee and afford him/her the opportunity to improve. Perhaps this is the reason for the meeting to establish the company's positin in relation to absenteeism etc.

Familiarise yourself with the Maternity Protection Acts as your partner would be cosidered a protected employee under the act.

Other than above I would advise your partner to attend the meeting with an open mind and without coming across defensive or aggressive. Listen to what the employer has to say, take notes if need be and (as advised above) take time out to reflect on what the employer is saying and re-schedule a follow up meeting if needs be. Dont be forced into a decision or into making a move at this meeting. Take time to digest.

Hopefully, it will be a routine meeting. Also, if the worst comes to the worst your partner may still be entitled to maternity benefit as this is payable based on the PRSI contributions for the previous tax year. You do not need to be in employment in the day you commence maternity leave. Check out your partners entitlements with your local social welfare office.

Good Luck.
 
You have three legal remedies.
1) You have an Equality case on grounds of discimination. Such a case would be cheap but could take almost 2 years to get to hearing. Not renewing a contract for reasons to do with pregnancy amounts to discrimination, end of story.
2) You take an Industrial Relations case to a Right Commissioner, which is a catch-all situation and very very cheap.
3) If let go you, take a case for an Unfair Dismissal. Pregnancy related dismissals are deemed to be automatically unfair and therefore 1 years service is not required.

Wrongful dismissal would be an overly expensive risk.

There is no legal statutory entitlement to sick pay. but your contract might provide for it. If it does, they are the rules that apply and you cannot treat a pregnancy related illness different to a normal illness - The European Courts have ruled that again and again.

Finally, listen to your doctor. Not the employer or the bar stool lawyer or even an actual lawyer. I always tell my clients that they must take their medical advice from their doctor seriously and not view it as a tactic or play games by trying to assess its implications on the big picture. If your partner is ill than she needs time off. Doctor knows best. The law is heavily weighted on her side.
 
well on thing I know is that if you go on maternity leave during a probation period that you are legally protected. You cannot be stopped etc from takign the lave, when you resume your employment your probation period continues as if you had been in yesterday
 
Tim

I think your partner should be up front - tell them she's pregnant and experiencing complications.

They will be floored and perhaps even relieved. As previously mentioned, they have a right to a reasonable return on the salary they pay and normally have the right to dismiss without reason or cause within the first 12 months of service. So if for example they feel a person's recourse to sick leave is excessive, they can simply terminate the employment. HOWEVER, THIS RIGHT DOES NOT EXIST IN CASES OF PREGNANCY.

I suspect the employer will be glad to hear they haven't employed a slacker and that there is a genuine reason for the unusal pattern of absences. It may be inconveneient, they may feel they've been hoodwinked, etc but that's just tough. Thier hands are tied on this one and any attempts to terminate your partner's employment, having been made aware of her pregnancy, would have a very weak legal basis.

On the other hand, if they haven't been advised of the pregnancy and they terminate the employment, this may alter things.
 
Snork Maiden said:
Since your partner has less than one years service and if the worst comes to the worst it won't be under the Unfair Dismissals Act

Snork Miaden, In the case of pregnancy related issues the one year service is not entirely necessary.
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[broken link removed] for a case of unfair dismissal or constructive dismissal
 
Tim123 ..The letter from the company seems to me to be part of the "normal" attendance programmes that many companies run and review weekly.The letter can seem cold however it is only a standard letter.Your partner should respond by phoning the HR dept and tell them she is pregnant and then follow that up today and put it in writing to the company advising them she is pregnant. Expressly state that her doctor says her ilness is pregnance related. For all intents and purposes no normal company,multi-national or otherwise is going do anything except support a pregrent employee.Fair pratice and the law is all on the side of the employee.It can not be considered under any circumstances in relation to any work related issues such as probation.Do not resign and do not sign anything.Take whatever time is needed to get better and enjoy as best as possible the expierence. In our company once an employee tells us the good news they become what we call "untouchables" as they are so protected in fairness and by the law and rightly so...

This should not be a concern or a worry to your partner, you or the company once everyone knows the facts.

Slán
p.s. don't mind any spelling errors.
 
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