Protection of labor stability reinforced by Maternity in the context of the Trial Period

Author: Laura Valderrama

Is the effect of terminating the employment contract for the trial period of a worker during the maternity period viable?

In these events we must bear in mind the sub-rules and jurisprudential precedent of the Constitutional Court in terms of reinforced job stability for pregnant workers within the framework of the unification sentences SU -070 of 2013 and SU – 075 of 2018.

1. Constitutional and legal protection of pregnant women:

 Article 13 of the constitution regulates the right to equality of all people will receive equal protection and treatment, and especially the State will make protection measures of real and effective equality of discriminated groups and protect people in manifest weakness. Adding article 43 of the Constitution of the right of women not to be subjected to any type of discrimination during pregnancy and after childbirth, enjoying special protection from the State, preferentially supporting the female head of the family.

In the labor field, the fundamental labor principles of article 53 of the constitution are applied in terms of i) the right to equality of workers, ii) stability in employment, iii) special protection for women and maternity that particularly apply to the right to reinforced labor stability of pregnant workers.

From the regulatory framework we have article 241 Numerals 1 and 2 of the Substantive Labor Code, added by Law 2114 of 2021 with the prohibition of pregnancy tests and only exceptionally applicable if it implies real or potential risks in the course of pregnancy and the Article 236 on leave during childbirth.

Reinforced employment stability rules for pregnant workers with employment contracts

The rules of unification of labor stability reinforced by maternity with the sentences of unification SU-070 of 2013 that initially regulated:

1. That some type of relationship is in force and that the person is pregnant or within three (3) months of delivery. However, the extent of this protection will depend on whether or not the pregnancy was known to the employer.
2. If previous dismissal was known by the employer, it is assumed the dismissal was discriminatory due to their sex and special condition of pregnancy or maternity, given the prohibition of termination of the contract without the respective authorization of the labor inspector even if there is just cause to the worker.
3. The type of relationship of the pregnant worker with a fixed, indefinite contract, work or work will depend on the degree of protection of reinforced job stability
4. Burden of proof of the employer that mediates a just cause for termination with the respective permission of the labor administrative authority for the dismissal

Parameters of the employer’s knowledge of the pregnancy evaluated by the Constitutional Court:

The various forms of knowledge of the employer initially evaluated are the following:

1. When the person directly informs their employer of their pregnancy status
2. Because it is a notorious fact
3. The employer will understand the circumstance through a third party
4. The employer was aware, when the circumstances surrounding the dismissal and the conduct assumed by the employer to deduce it
5. Judge’s assessment if the previously described mechanisms were not resorted to since they are not exhaustive and knowledge can be evaluated regardless of whether formal notification was not produced and the employer knew prior to the dismissal.

Subsequently, the precedent is adjusted with SU-075 of 2018, adding the following rules:

1. No payment of the social security contribution if the employer did not have prior knowledge of the termination of the worker’s pregnancy or the payment of maternity leave.
2. That it corresponds to the State to assume the protection of pregnant women when they are in a condition of non-protection or unemployed (Art. 43 of the Political Constitution)
3. The protection of the maternity and lactation jurisdiction is applied, consisting of the ineffectiveness of the dismissal and consequently reinstatement together with the payment of the expenses not received, if it is a discrimination against the worker.
4. When there is doubt as to whether the employer knows the gestation status of the worker, the presumption of dismissal for reasons of pregnancy of article 239 CST operates, however in any case the employer’s right of defense must be guaranteed, since there is no place an objective responsibility.
5. When the employer does not know of the worker’s pregnancy, regardless of whether a just cause has been adduced, there is no place for protection derived from reinforced job stability. Consequently, the employer cannot be ordered to pay the contributions to the social security system during the gestation period, nor to reinstate the terminated worker or to pay for maternity leave.

Protection of the right to labor stability reinforced pregnant women requirements of the trial period. Conditions of the permanent and indefinite employment contract

Trial period requirements: The court reiterates the importance of regulating article 76 of the CST of the trial period agreement in the employment contract that has as its objective or purpose to appreciate the worker’s aptitudes on the part of the employer, and on the part of the latter the convenience of employment or conditions of work. Additionally, in observance of article 77 CST, the written requirement of the trial period in the contract and otherwise the services by the general rules of the contract and its setting limit of duration of two (2) months for indefinite contracts, fixed with duration of one year and for the duration of less than one year, one fifth and the possibility of termination unilaterally by the parties without prior notice.

In short, the probationary period is characterized by its written solemnity, therefore if there is no written agreement, it lacks legal validity and if the termination occurs, it is classified as dismissal without just cause, even if a just cause is present.

Protection of labor stability reinforced in the context of trial periods

Although the Court has considered the trial period as an exception to the principle of job stability and occupation of the worker, although the termination in the trial period does not require a reason for what is a power of nature that the labor law allows, it does not legitimizes the employer to ignore fundamental labor rights, especially if it is derived from discrimination is a constitutionally unacceptable dismissal and the legal effect regulated in labor law may not be granted.

In the opposite scenario, it must be based, according to the legal norms, on the verification of a certain lack of sufficient aptitudes of the worker for the performance of the task entrusted with the effect of the dismissal that he has during the validity of the trial period.

In this regard, the court has ordered in different judgments T-902 of 2000, T-1097 of 2012 and T-161 of 2002 of dismissed workers in trial period, the principle of opposability of the right to reinforced labor stability and stability in employment and the application of the trial period is not an absolute power of the employer:

«(…) within the employment contract it was, in principle, unenforceable against such jurisdiction, since this would cause a result contrary to the mandate to protect the fundamental rights of the mother and the newborn»

Additionally, constitutional jurisprudence has established the following aspects that the employer must take into account during the trial period vs. reinforced job stability:

1. Equal opportunities for workers
2. The primacy of reality over forms
3. The obligation of the state to promote the job placement of people of working age, special groups subject to discrimination.

Finally, the court requires, in accordance with the previously explained jurisprudence line, the unification of pregnant workers in the trial period, which, for example, could entail the burden of requiring the employer to obtain authorization permission from the Ministry of Labor.

At OCH GROUP, we are expert allies in advising and consulting companies, or employers, natural persons, or workers on regulatory parameters and analysis in terms of reinforced job stability.

Sources:

• SU-070 of 2013
• SU-075 of 2018
• Articles 13, 43 and 53 of the Political Constitution
• Articles 236 and 241 of the Substantive Labor Code