The dilemma - Pregnancy while serving probation

BY: Edward Kwapong (Dr)
 The employer and the pregnant employee can agree to terminate in accordance with the Labour LAW
The employer and the pregnant employee can agree to terminate in accordance with the Labour LAW

Getting pregnant while serving probation in a new job has always been a dilemma not only for the employee but also the employer.

At such an early stage of the employment relationship, the employee is at a loss as to whether to disclose this to the employer or to hide or suppress it till the ending moments of the pregnancy.
While some employees will immediately disclose the fact and ask for the offer of employment to be put on hold until after delivery, others will simply put in their resignation to forestall any embarrassment or inconvenience.
On the other hand, some employers have had to ask the worker to resign or continue to serve the probation, knowing too well that when it came to appraisal at the end of the period, her performance would be adjudged as not having been satisfactory, for which reason he would terminate the contract of employment.
Some good employers, though, guided by ethics and morality would, for their part, see the pregnant woman as any other female worker, observe her and rate her objectively at the end of the probation period, the pregnancy notwithstanding.  

Obviously, some of these decisions are informed by morality while others border on legality. What then is the position of the law regulating the employer/employee relationship, that is, the Labour Act (2003), Act 651 on the matter?

Position of the law

Section 57 of Act 651 has made elaborate provisions on entitlement of a female worker who gets pregnant and becomes due for confinement (maternity leave).
The most important of these provisions is that “a female worker, on production of a certificate issued by a medical practitioner or a midwife, indicating the expected date of her confinement, is entitled to a period of maternity leave of at least twelve (12) weeks in addition to any period of annual leave she is entitled to after her period of confinement”.

As would be noticed, the entitlement to maternity leave is without distinction to any female worker.

The law is applicable to all female workers, including pregnant workers serving probation. It would be wrong, therefore, for any employer to terminate the contract on grounds of pregnancy and maternity leave.

After all pregnancy is not a disease but only a condition precedent to childbirth.
Again, Chapter 5 of the 1992 Constitution, on Fundamental Human Rights, makes a provision under Article 27 for special care to be accorded mothers before and after childbirth without any distinction.

The female worker serving probation can, therefore, not be discriminated against by termination or threat of termination.
Indeed, as per Section 63 of the Labour Act, it would be considered unfair termination if a female worker’s employment is terminated for the reason that the worker has got pregnant or has absented herself from work during maternity.
Furthermore, any action on the part of the employer, whether overt or covert, to cause the pregnant probationary officer to put on hold the probationary service, would amount to unfair treatment or an illegality.

Of course, employers are in business to make profit and any situation that leads to loss of productivity is of great concern to them.
Provisions in the law that compel them not only to grant maternity leave with pay for 12 weeks and in situations of abnormal confinement to grant a further two weeks create considerable uneasiness for the employer and at times, even to fellow workers.
This becomes more frustrating when the female worker on maternity leave is required to be granted an additional one hour a day to breastfeed the baby.

Furthermore, where an illness medically certified by a medical practitioner is due to confinement, the female worker is entitled to additional extension as certified by the medical practitioner.

In all these, the female worker is entitled to her normal annual paid leave and in the case of the probationary worker, perhaps on pro rata basis.

It is against this background that pregnancy while serving probation presents a dilemma to both the employer and the employees.

What then are the options available to the parties in such situations?

The dilemma and the law

In the first place, Section 15 (a) of the Labour Act, on grounds for termination of employment, provides for parties to an employment contract to mutually agree to terminate the relationship.

Thus, where a great deal of inconvenience may be caused by the pregnancy, the parties acting reasonably may agree to terminate the contract. This way, the relationship is severed without any ill feeling.
The severance resulting from the mutual agreement may be subject to the probationary officer re-applying for the job and submitting to probation in order either to complete the unfinished probation or start it all over again.

This, to all intents and purpose, would be considered lawful.
The employer being a shrewd businessman may invoke the termination clause in the offer letter - notice or cash in lieu of notice - to terminate the contract.
This will, again, be lawful except that the law courts, in the context of the Labour Act of Ghana, may construe it to be unfair, for which reason the employer may face the consequences of unfair termination.

Scholars of Common Law at the Bench may, however, consider it as fair in the eyes of the law (Law of Contract).

In the alternative, the employer may allow the pregnant female worker to serve the probation until she is due for confinement with all its financial implications, particularly man-hours lost due to illness and maternity leave.
The employee may also, for her part, just decide to resign. Alternatively, she may choose to stay on to serve the probation, the pregnancy notwithstanding, and access all the benefits of maternity leave as provided by the law.
In conclusion, the matter of pregnancy during probation is a tricky and sensitive one which both parties to the employment contract need to handle with care to avoid embarrassment and lawsuits.

The writer is the President &
Fellow of the Institute of Human Resource Management Practitioners (IHRMP) Ghana.