Termination of employment during pregnancy and maternity leave

During pregnancy and maternity leave, dismissal is prohibited by law. This week, we discuss a case in which an employer nevertheless tries to have the employment contract dissolved.

The case concerns an employee who has been an account manager at Energetica since 2019. She works 30 hours per week at a salary of €3,488.94 gross excluding holiday allowance. Her employment contract includes a bonus scheme.

Important in this case is that Energetica has imposed turnover targets on the employee. On 30 March 2020, it appeared that the employee had achieved 88.2% of her turnover target for January and February 2020. On 1 April 2020, an action plan was drawn up with regard to (among other things) getting more prospects. When the sales figures for April 2020 became available, it appeared that the employee had realised 85.06% of the turnover objective. At the beginning of October 2020, after taking it a bit easier for a while, the employee made a "back on track plan". This plan included, among other things, getting a full agenda and focusing on prospects.

On 20 January 2021, the employee had a conversation with her employer: it appeared that an error had been made with the (distribution of the) turnover figures. It turned out that the employee had achieved a turnover of 97.9% in 2020. What followed were chocolates, a bouquet of flowers and a card with apologies. In January 2021, the employee received a performance bonus.

On 10 February 2021, the employee dropped out of work with complaints of overwork. On 19 February 2021, the case manager considered her fully incapacitated for work. In the problem analysis of 22 March 2021, the company doctor writes that the employee can start reintegration into her own modified work two weeks later. Halfway through March 2021 the informed Energetica that she was pregnant.

Instead of reintegration, Energetica offered the employee a settlement agreement on 11 May 2021, but this was not signed by the employee. On 21 May 2021, the company doctor wrote that there was no question of 'illness or disability' and that parties should enter into talks to find a solution to the problem. On 7 August 2021, the employee went on maternity leave. Later that month, the mother of the employee died. In September 2021, the employee gave birth.

Proceedings at the Subdistrict Court
Energetica went to the Subdistrict Court with the request to dissolve the employment contract. Energetica's main argument was that the employee was malfunctioning and/or that the working relationship had become disrupted. In the alternative, Energetica invoked the combination of grounds.

The employee put forward a defence and argued that the request for dissolution should be dismissed. Insofar as a dissolution was nonetheless effected, the employee applied for, inter alia, the transitional allowance of just under €3,000 gross and for fair compensation of €47,951.04 gross.

Judgment of the Subdistrict Court
The Subdistrict Court did not share the opinion of the employer that there was a question of malfunctioning. For the exact considerations, please consult the judgment itself. The subdistrict court did rule that there was a serious and lasting disruption in the employment relationship.

Of course, the Subdistrict Court observes that there is a prohibition on giving notice pursuant to Section 7:670 of the BW. The employee is ill and she has pregnancy leave until 27 November 2021. Nevertheless, a dissolution may be effected if the request for dissolution is not related to circumstances covered by the prohibition on giving notice or if there are circumstances of such a nature that the employment contract should be terminated in the interest of the employee (Section 7:671b, subsection 6, BW).

It has not become plausible that Energetica's efforts to terminate were related to illness (overwork) or the employee's pregnancy. The company doctor wrote on 21 May 2021 that there was no question of 'illness or disability'. In addition, in March and April 2021 the employee reported her pregnancy to Energetica and on 11 May 2021 it became clear that Energetica was seeking a termination of employment. In August 2021, Energetica (only) submitted a termination request and also did not give any further indication that it wished to get rid of the employee sooner because she was pregnant. In addition, it became clear during the hearing that it was not in the employee's interest to return to work for Energetica after the statutory period of leave had expired.

However, the Subdistrict Court did postpone the dissolution until 1 January 2022, since the employee was on maternity leave. On the one hand this took account of the protection that the employee was entitled to in connection with her pregnancy and delivery and took into account her current position on the labour market, while on the other hand it also provided sufficient clarity to Energetica about the future.

The Subdistrict Court also ruled that the employee was entitled to receive fair compensation in addition to the transitional allowance. After all, according to the Subdistrict Court, Energetica had acted in a seriously culpable manner:
a) when it became apparent that there was an error in the turnover figures which affected the employee's performance, not to discuss this error and its consequences for the employee personally within the whole team; whereas previously she had been made aware of her underperformance in front of the whole team;
(b) not to undertake the reintegration of the employee, as set out in the plan of action of 6 April 2021;
c) Misled the employee by inviting her to a meeting to discuss resuming work and, during that meeting, presenting her with a settlement agreement;
(d) immediately after the discussion about the settlement agreement, to which the employee had not yet agreed, to issue an internal memo stating that the employee was no longer working for Energetica, while she had not yet (fully) recovered from complaints of overstrain and was pregnant.

Contrary to Energetica's argument, serious culpability does not only apply if the error with the turnover figures was made consciously. Even if an error has been made, the way in which this is dealt with can lead to serious culpability. Energetica also argued that the employee herself did nothing to reintegrate. This has been sufficiently refuted by the employee.

Final remarks
The Subdistrict Court dissolved the employment contract, but awarded the employee fair compensation of €12,000 gross in addition to the transitional allowance.

Do you also have questions about termination of employment contracts, underperformance and/or disrupted labour relations? Or about dismissal prohibitions in the event of pregnancy or illness? SPEE advocaten & mediation is happy to help you.

SPEE advocaten & mediation Maastricht