Can a pregnant employee be dismissed during the trial period?
The majority of employees have a trial period in their employment contracts. Trial periods allow the employee and employer to see if it’s a good fit. During this period, both parties can terminate the contract without giving a reason for termination. Trial period provisions are only valid in employment contracts longer than six months; otherwise, the trial period is null and void (nietig).
A sick employee can be dismissed during the trial period, but the illness cannot be the reason for dismissal. The same goes for dismissing a pregnant employee. However, this happened in the case before the District Court of North Holland.
The facts of the case
After the interview process, the employee reached an agreement with the employer about her contract, the duration and the start date. The employee would work full-time with a four-day working week as long as the UWV supplemented this with parental leave (ouderschapsverlof).
A week later, the employee told her employer that she found out she was pregnant. After discussing this news with her manager, the employer emailed her saying they could not offer her a contract because the parental leave was not temporary and the position was for full-time employment.
The employee argued that the dismissal was due to her pregnancy and therefore invalid and claimed fair compensation (billijke vergoeding). The employer contended this by saying no written employment contract was concluded and that the dismissal was due to the employee being unable to work full-time after her pregnancy, which was necessary for the position.
When is an employment contract established?
The court first considers that an employment contract is concluded when there is agreement on the essentials of the contract, such as the position, the salary, the duration of the employment, and the starting date. From the email correspondence in the weeks after the interview, it was clear that both parties agreed on these essentials. The court adds that a written employment contract is not required to establish employment. The employee, therefore, had an employment contract.
Discrimination based on sex
The court continues that the law prohibits an employer from discriminating based on sex when entering into an employment contract and terminating it. This prohibition is coded in Article 7:646, paragraph 1 of the Dutch Civil Code (DCC). Distinction based on pregnancy, childbirth, and maternity is a form of direct discrimination based on sex. According to Article 7:646, paragraph 12 of the DCC, the employer has to prove that the dismissal was not due to discrimination based on sex. However, the employer failed to prove this, rendering the dismissal invalid.
Compensating the employee
Because it was a fixed-term employment contract that could not be terminated prematurely, the employer had to compensate the employee for the period the contract would have lasted had it been terminated according to the law (gefixeerde schadevergoeding). The employment would have started on 1 June 2023 with a one-year term, meaning the employee would receive compensation until 1 June 2024. The court mitigated the compensation to the statutory minimum of three months, seeing as the employee had not yet ended her former permanent employment contract with a previous employer.
The employee was also rewarded fair compensation (billijke vergoeding) because the employer terminated the employment in violation of the prohibited distinction based on sex. The court adds that this compensation is also intended to make the employer realise that its action was wrong and serves to prevent the repetition of similar conduct.