In April 2025, the case of N Kayahan Kolan v Marks & Spencer Group PLC (Case Number: 3302722/2024) made headlines when the UK Employment Tribunal ruled in favour of an employee who was dismissed shortly after informing her employer Marks & Spencer of her pregnancy. The tribunal found that the dismissal for reasons connected to the employee’s pregnancy were automatically unfair and discriminatory under English law.
In the Singapore case of Longitude 101 Pte Ltd v Navinea Kanapathy Pillai [2024] SGDC 47 (the Longitude case), the Singapore District Court similarly ruled in favour of a pregnant employee (the employee) who was dismissed by her employer (the employer).
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Factual background
In the Longitude case, the employment contract had a clause that allowed either party to terminate the employment by giving 3 months’ written notice (the contractual termination clause).
Approximately 4 months after the employee notified the employer’s sole shareholder and de facto director of her pregnancy, the employer issued a notice of termination (the termination notice), which stated, among other matters, that:
- the termination was effective from the date of the termination notice, and
- the employee would receive 3 months’ salary in lieu of notice, and an additional bonus of S$15,000.
Apart from citing the contractual termination clause, the employer did not provide other reasons for the employee’s termination.
The employee counter-claimed against her employer (who initiated legal proceedings against the employee for other reasons that are not relevant for the present discussion) for wrongful dismissal in breach of s 84(1)(b) of Singapore’s Employment Act 1968, among other claims. Under s 84(1)(b), if a notice of dismissal is given without sufficient cause by an employer to a female employee who has been certified as pregnant by a medical practitioner and has served her employer for a period of at least 3 months, she remains entitled to maternity benefits.
A key issue for the court was whether the employee had been wrongfully dismissed.
Court’s decision
The purpose of s 84(1)(b) of the Employment Act 1968 is to protect pregnant employees who have served their employer for at least 3 months, and obtained a doctor’s certification of pregnancy prior to the dismissal notice, from being dismissed without “sufficient cause” or retrenched, throughout their pregnancy.
Application of Tripartite Guidelines
Since the Employment Act 1968 does not specify what constitutes “sufficient cause” for dismissal under s 84(1)(b) and in the absence of prior reported cases on this provision at the time of the decision, the court referred to the Ministry of Manpower’s Tripartite Guidelines on Wrongful Dismissal (the Tripartite Guidelines).
Sufficient cause for dismissal
The court, guided by the Tripartite Guidelines, held that the following categories (non-exhaustive) do not constitute “sufficient cause” for dismissing a pregnant employee under s 84(1)(b):
- relying on a contractual notice period or paying salary in lieu of notice. The court confirmed the position taken in the Tripartite Guidelines that it was wrongful to dismiss a pregnant employee with notice to avoid paying maternity benefits if the employer:
- was unable to provide a legitimate reason for the dismissal
- dismissed the employee shortly after she informed of her pregnancy
- did not pay the maternity benefits
- retrenchment, which is expressly not an acceptable ground under s 84A(1)(b)
- dismissal without notice on the ground of misconduct, which does not constitute sufficient cause if the employer has not conducted “due inquiry” into the alleged misconduct. The court noted that “due inquiry” requires some sort of process in which the employee concerned is informed about the allegation(s) and the supporting evidence, and is given an opportunity to defend by presenting their case with or without evidence
- dismissal based on employee’s age, race, gender, religion, marital status, family responsibilities or disability
- dismissal to punish an employee for exercising an employment right (such as filing an employment-related claim with the Tripartite Alliance for Dispute Management or refusing to work overtime) is not sufficient cause.
In each case, the courts must scrutinise the relevant facts before establishing whether there is sufficient cause.
The court held that once the employee was able to adduce (not inherently incredible) evidence that she was wrongfully dismissed by the employer on grounds of her pregnancy, the burden would then shift to the employer to substantiate the reasons for the dismissal.
It was undisputed that the employer was aware that the employee was pregnant when the termination notice was issued. The evidence adduced suggested that:
- the employee was not given any reason for the termination of her employment, apart from the employer’s reliance on the contractual termination clause in her employment contract
- the employer’s sole shareholder and de facto director reacted negatively when he first found out about the employee’s pregnancy, and had even suggested that she abort the child
- the employer failed to provide contemporaneous evidence to demonstrate alleged difficulties working with the employee or claims of poor performance
- the employer chose not to specify any reasons for terminating the employee with notice, despite being invited by the court to do so.
The court also opined that an employee’s failure to follow instructions to perform acts that were in breach of statutory and regulatory requirements is akin to the exercise of an employment right and a dismissal arising from the same does not constitute sufficient cause.
Based on the evidence, the court found that the employee was dismissed for reasons connected to her pregnancy and the employer was unable to demonstrate sufficient cause for the termination.
Key takeaways
Terminating a pregnant employee is a sensitive and legally complex matter, which must be approached with care. It is clear from the decision that courts will not allow employers to exercise their contractual rights of termination to circumvent the protection afforded to pregnant employees under s 84(1)(b) of the Employment Act 1968. An employer who wishes to terminate a pregnant employee for misconduct must ensure that they maintain contemporaneous evidence of the misconduct and conduct due inquiry.
On a related note, under the new Workplace Fairness Act (slated to come into force in 2026 or 2027), it will be considered discrimination for an employer to make any employment decision (including dismissing an employee) that adversely affects an individual on the ground of a protected characteristic of the individual such as pregnancy.
If an employer commits an act of discrimination in contravention of the Workplace Fairness Act, the employer may face penalties, and individual officers of the employer may also be personally liable. Currently, individuals may be held jointly and severally liable with the employer under the tort of conspiracy. In the Longitude case, the sole shareholder and de facto director, who was the controlling mind of the employer, was found to be jointly and severally liable to the employee on the grounds of conspiracy.
Employers must exercise heightened care and sensitivity when dealing with pregnant employees, or risk facing financial penalties, expensive legal claims and unwanted publicity.
If you require any further information, please do not hesitate to contact Mr David TEO Shih Yee (Managing Director, Notary Public and Commissioner for Oaths) at: [email protected]
Disclaimer: The views expressed herein are the authors’ and do not necessarily represent the view of LONGBOW Law Corporation (“LONGBOW”) or any of its lawyers. LONGBOW did not represent any parties in the case discussed. This article is a summary for general information and discussion only and should not be construed as providing legal advice concerning the laws of Singapore or of any other jurisdiction. It is not a full analysis of the matters presented and may not be relied upon as legal advice. Readers should consult with counsel for legal advice on the matters addressed herein.
Ng Wei Lin is a Legal Associate at Longbow Law Corporation.
Sean Cheai is an Intern at Longbow Law Corporation.
