Pregnant woman
Protection
Pregnancy is a time when the employee is more vulnerable. Her health and safety must be given special consideration. In addition, a pregnant woman's ability to find a new job is limited. She is protected against dismissal.
Pregnancy is a sensitive criterion. When an employer refuses to hire an employee or dismisses her because of her pregnancy, he or she is in a particularly delicate situation.
Job interview
"Are you pregnant" or "Do you expect to be pregnant soon?" These questions are tricky, but they often ring true in job interviews...
Even if a pregnancy implies a reorganization on the part of the employer, he cannot, in principle, refuse to hire an employee for this reason. This would constitute discrimination in hiring and could be punished under the Federal Act on Equality between Women and Men.
There is, however, an exception: when the candidate's pregnancy would prevent her from doing the job in the first place. This may be the case when the activity that would have to be performed would endanger the health of the mother or her child, especially when she would have to move heavy loads.
Working hours
Pregnancy is a time when the employee is more tired and needs to rest. The length of her work day and the possibility of asking her to work overtime are limited. The Labor Act allows a pregnant employee to be absent from work on notice, even without a medical certificate. This raises the question of entitlement to salary.
Breaks
In addition, if the pregnant employee works mainly on her feet, her work may become increasingly difficult as her pregnancy progresses. This is particularly true of waitressing and nursing positions. The employee is entitled to additional paid breaks.
Health and safety
During pregnancy, the health of the pregnant woman and her baby is more vulnerable. Exposure to harmful substances or micro-organisms can affect the fetus.
Strenuous or dangerous activities, such as carrying heavy loads or shaking, can cause premature delivery. Because of the fatigue that pregnancy can cause, certain work schedules can be particularly hard on them.
In principle, smoking is prohibited in public places, including the workplace. However, it is still possible for companies operating in the restaurant sector to install a smoking room or to let their customers smoke on the terraces. However, passive smoke can cause health problems in the fetus or induce premature delivery.
In the above cases, the employer must offer the employee an equivalent activity that is not dangerous or arduous. The questions of which tasks he can assign to her and the consequences if he is unable to provide her with suitable work are delicate.
Wrongful termination
Breastfeeding breaks, time off to care for a sick child, requests for a reduction in the rate of work... The employer's fears related to pregnancy and maternity are real. This does not mean, however, that an employer may terminate an employee because she has been pregnant or wishes to become pregnant in the near future. Such a dismissal is wrongful.
If the dismissal is based on the employee's claims, particularly with respect to breastfeeding at work, the dismissal may also constitute a reprisal leave. The employer may have to pay compensation to the employee, which may amount to several months' salary.
Protection against dismissal
During pregnancy, it is particularly difficult or impossible for a woman to find a new job. A dismissal during this period would be inappropriate. For this reason, a pregnant employee is protected against dismissal during the entire pregnancy and for a certain period after the birth. The possibility of terminating the contract is extremely limited.
Probationary period
If an employee is absent from work during the probationary period for special reasons, the probationary period can be extended. However, during the trial period, the employee is not protected against dismissal in case of pregnancy. The question of whether the probationary period has been extended is crucial in such cases.
Let's take the case of a pregnant woman hired on January 1st with a trial period of three months, i.e. until April 1st. This employee is absent for two weeks during the probationary period due to an inability to work or vacation. Is the probationary period extended in these cases? Is the employer entitled to dismiss the pregnant employee on April 5th?
After maternity leave
The Swiss Federal Court has ruled on the case of an employee who was dismissed after returning from maternity leave. The company had decided to reorganize and adopt a new business system. However, due to her numerous work incapacities during her pregnancy, the employee was not able to keep up to date with the new business system adopted by the company.
Is such a dismissal, which takes place after the employee's return from maternity leave and is linked to her inability to work during her pregnancy, wrongful?