S.L. 452.91 Art. 12ADismissal during probation.

In the case that an employee who is pregnant or has recently given birth or who is breastfeeding is in her probationary period, the following provisions shall have effect and shall prevail in case of conflict with any specific requirement regulating the probationary period in the Act:

(a) in the case of a pregnant employee who is in her probationary period, if the probationary period has not been exhausted on the date when the pregnant employee is to start her maternity leave, the probationary period shall be deemed to have been automatically suspended on the commencement of the maternity leave for the whole period of maternity leave and of any period of incapacity for work owing to a pathological condition arising out of confinement in the five weeks following the end of maternity leave as referred to in article 36(17) of the Act, and any remaining probationary period shall thereafter continue to run upon her return to work following the end of the maternity leave or from a period of incapacity for work following the end of such leave, as the case may be;

(b) in the case that a pregnant employee or an employee who has recently given birth or who is breastfeeding is granted special maternity leave before the probationary period has been exhausted, the probationary period shall be considered to have been automatically suspended for the duration of the special maternity leave and shall, subject to paragraph (a), only start to run again upon her return to work;

(c) notwithstanding article 36(2) of the Act, in the case of a pregnant employee on probation, if the employer decides to dismiss a pregnant employee during the probationary period, the employer shall be bound to give the reason or reasons for the employee’s dismissal in writing at the time of dismissal to justify that the dismissal is unrelated to the employee’s condition. If the employer fails to give written reasons for dismissal at the time of dismissal or if the employee considers that any reason given by the employer is unjustified, and that she considers that the dismissal was unfair, the employee may present a complaint of alleged unfair dismissal before the Industrial Tribunal within four months from the date of the dismissal. In any proceedings, where the employee establishes before the Tribunal, facts from which it may be presumed that there has been direct or indirect discrimination related to her condition, it shall be for the defendant to prove that the dismissal was based on a good and sufficient cause and in the absence of such proof on the defendant’s part, the Industrial Tribunal shall uphold the complaint. Furthermore, if the employer fails to give the reason or reasons for the employee’s dismissal in writing at the time of the dismissal, this failure shall be considered by the Tribunal as an inference that the dismissal was indeed related to the employee’s condition.