Breaking the trial period and pregnancy: case law changes the situation

After the renewal of her probationary period, an employee announces her pregnancy to her employer. Two months later, the employer breaks its probationary period. The employee takes the case to court. She considers that the reason for her breach of contract is related to the fact that she is pregnant; in other words, the employer acted on a discriminatory ground. She asked the employer to prove that the termination was for objective reasons and not for her pregnancy.

The Court of Appeal did not agree with the employee. In her view, it is up to the employee to provide evidence of direct or indirect discrimination on the part of the employer.

The Court of Cassation contradicts the Court of Appeal and condemns the employer.

It specifies who, of the employer or employee, must provide proof in the case of the dismissal of a pregnant woman. She pointed out that the employer did not have to take into account a woman's pregnancy in order to break her contract during her probationary period. It states that it is therefore for the employer to provide the judge with evidence showing that the breach of contract is based on objective and non-discriminatory elements.

The Court held here that the breach of contract occurred after the employer became aware of the pregnancy of its employee. The decision of the Court of Appeal is therefore invalid. The burden of proof lies with the employer and not with the pregnant employee.