Pregnancy

Notion

Pregnancy is a time when the employee's health and that of her child are more vulnerable. The employer has an increased duty to protect the personality and health of her pregnant employees. Certain jobs or work schedules are prohibited. Pregnancy is also a sensitive personal data that deserves special attention, especially during the hiring process.

Job interview

The employer already has a duty to protect personal data, as soon as the application is received and during the job interview.

The employer may only process the employee's data insofar as this is necessary for the proper performance of the job. Questions about diplomas, professional experience or language skills are not problematic. The situation is more delicate when the employer asks questions about a pregnancy, as this is considered sensitive personal data.

The employer cannot ask about an employee's current or future pregnancy. The employer may exceptionally ask a candidate if she is pregnant when she would not be able to perform the job in question or if the job would be dangerous to her health or that of her child.

Discrimination in hiring

The question of whether, in a particular case, the employer has the right to inquire about a candidate's pregnancy is a thorny one. Employers must be careful because they risk being accused of discrimination in hiring if they refuse to hire a candidate because of her pregnancy without just cause. The compensation can amount to several months' salary.

Termination at an inopportune juncture

During a pregnancy, it is very difficult or impossible for the employee to find a new job. She is protected against termination at an inopportune juncture during the pregnancy and for a certain period of time after the birth. Dismissal during the probationary period or after this protection period is possible but is likely to be wrongful.

Pregnancy announcement after the dismissal

The employer does not always know about an employee's pregnancy at the time of dismissal and/or during the notice period. If the employer terminates a pregnant employee or if the employee becomes pregnant during the notice period, the employment relationship is extended for a certain period of time.

Is the employee entitled to her salary between the time of dismissal and the time she informs her employer of her pregnancy? If the employer has released the employee from her obligation to work during the notice period, can she be required to return to work?

Wrongful termination

As a general rule, the employer benefits from the freedom of contract. The employer may terminate an employee for any reason. This freedom is limited by the Equality Act between Women and Men.

The employer must not treat an employee unfavorably because of her sex or pregnancy. If an employer terminates an employee because she is pregnant or asserts rights related to her pregnancy, the termination is likely to be considered wrongful.

Some situations are borderline. What about an employer who terminates an employee because she was unable to learn about the new business system implemented within the company due to her inability to work during her pregnancy and her maternity leave?

Holidays

The purpose of holidays is to allow the employee to rest both physically and mentally from her work. When the employee is absent from work for a certain period of time, this fatigue is reduced. The employer may, under certain conditions, reduce an employee's vacation entitlement.

However, any inability to work during pregnancy will only result in a reduction of vacation entitlement after a certain grace period, which the employer must respect. The situation of maternity leave is subject to special rules.

Working hours

Pregnancy is a time when the employee needs sufficient rest. The employer has an increased duty to protect her health. The daily working hours and the possibility to ask her to work overtime are limited.

During certain periods of pregnancy, night work is prohibited for pregnant women. The employer must offer her an equivalent job during the day. If he/she cannot do this, he/she will have to pay part of her salary for a certain period of time.

Breaks

Pregnant women tire more quickly than their colleagues. The employee's workload may become more demanding as her pregnancy progresses. The employer must give her extra breaks, especially when the employee's work involves standing.

Health

The employer has an increased duty to protect the health of his or her pregnant employees. He/she must occupy them in such a way as not to endanger her health or that of her child. Certain activities are prohibited, especially if they expose the employee to certain toxic or dangerous substances. Some work may also cause premature delivery or harm the health of the child.

The pregnant employee may ask her employer to assign her to non-hazardous or strenuous work. If, for organizational reasons, the employer is unable to do so, he or she will have to pay part of her salary.

Maternity benefits

An employee who has recently given birth is covered by the loss of earnings insurance. She will receive maternity benefits for the duration of her maternity leave. This entitlement arises in principle when the child is born alive. If the baby is stillborn or there is a miscarriage, the employee will receive loss of earnings benefits only if the pregnancy has lasted for a certain period of time.