Dear Attorney,

I hope this letter finds you well. I am writing on behalf of a management team in an organization, seeking your guidance regarding a probationary employee who is currently experiencing a sensitive pregnancy. This employee has had several absences in recent weeks due to pregnancy-related concerns. Our primary goal is to ensure that we handle the situation properly, in full compliance with Philippine labor laws and regulations.

As a representative of management (please refer to me as “Concerned Manager”), I request your expert legal advice on how best to handle the matter. Specifically, I wish to clarify the limits of management’s discretion in evaluating her performance as a probationary employee, as well as the implications of her pregnancy and related leaves on her job security. We would like to ensure that our actions do not transgress any protective provisions under the Labor Code of the Philippines, social legislation, or other applicable rules.

We also want to make sure that we respect her statutory rights. If there is any guidance or standard operating procedure that could help balance the requirements of her probationary status and the legitimate concerns of the management regarding attendance and performance, we would greatly appreciate your recommendations. Kindly include the relevant legal framework, best practices, and any procedures or documentary requirements that we, as an organization, should observe.

Thank you for your attention to this matter. We trust in your deep expertise and are looking forward to your comprehensive and meticulous advice.

Respectfully,
Concerned Manager

LEGAL ARTICLE ON PHILIPPINE LAW CONCERNING PROBATIONARY EMPLOYEES AND PREGNANCY-RELATED ABSENCES

Introduction
The employment relationship in the Philippines is governed by various laws and regulations, most notably the Labor Code of the Philippines (Presidential Decree No. 442, as amended), issuances by the Department of Labor and Employment (DOLE), and jurisprudence from the Supreme Court. In particular, employers need to be cognizant of the rights and protections afforded to pregnant employees—whether regular, contractual, casual, or probationary. This article provides a comprehensive overview of the legal principles relevant to a probationary employee who experiences pregnancy-related absences, highlighting key obligations for employers and protective measures for employees.

I. Nature of Probationary Employment

Legal Definition
Probationary employment is a period wherein an employer closely evaluates an employee’s performance, skills, and overall fit for a particular position. The Labor Code of the Philippines, under Article 296 (previously Article 281), allows probationary employment so long as it does not exceed six (6) months, unless a longer period is provided by an apprenticeship agreement or is otherwise allowed by law.
Standards of Performance and Security of Tenure
Employers are obligated to clearly inform probationary employees at the time of engagement of the reasonable standards by which their performance will be assessed. If the employee meets these standards by the end of the prescribed period, she becomes a regular employee. Failure to meet or comply with these standards may be a valid ground for the employer not to continue her employment beyond the probationary period.
However, the Supreme Court has consistently emphasized that a probationary employee enjoys security of tenure during the limited period of her probation, meaning she may only be terminated for just or authorized causes as defined under Articles 297-298 (formerly Articles 282-283) of the Labor Code, or for her failure to meet the established and communicated probationary standards.
Employer’s Obligations
During probation, employers are expected to provide constant feedback to the employee regarding her performance. Additionally, the standards of performance must be made known to the employee from the onset. Failure to communicate these standards could mean that the employee is deemed a regular employee from day one. Employers should ensure documentation of evaluations, including performance metrics and notice of any deficiencies. Clear lines of communication and due process must be observed to avoid allegations of illegal dismissal.

II. Rights of a Pregnant Employee

Constitutional and Statutory Protections
a. Constitutional Protection
The 1987 Philippine Constitution recognizes the role of women in nation-building and ensures the fundamental equality before the law of women and men. Further, it mandates the State to protect working women through legislation that protects motherhood and the welfare of children.
b. Labor Code and Social Legislation
Aside from the general provisions on employee security of tenure, the Labor Code also ensures that employees who are pregnant are not discriminated against in hiring or retention decisions. In addition, various social legislations such as Republic Act No. 8282 (Social Security Act of 1997, as amended) and Republic Act No. 11210 (105-Day Expanded Maternity Leave Law) grant maternity benefits, leaves, and additional protections against discrimination to pregnant employees.
c. Magna Carta of Women (Republic Act No. 9710)
This statute provides broad protection for women against discrimination in various contexts, including employment. It outlines the government’s duty to ensure that pregnant women are not terminated solely on the basis of their pregnancy and that they receive the necessary benefits and support.
Non-Discrimination Based on Pregnancy
It is considered an unlawful act of discrimination for an employer to terminate or refuse to hire a woman based on pregnancy or childbirth. The Supreme Court has ruled in several cases that pregnancy alone cannot serve as a valid ground for dismissal, whether the employee is on probation or holds a regular position. Rather, an employee’s pregnancy should be considered a medically recognized and protected condition that triggers certain statutory rights.
Maternity Leave Rights
The 105-Day Expanded Maternity Leave Law (Republic Act No. 11210) increased the paid maternity leave period for qualified women employees to one hundred five (105) days, with an option to extend for an additional thirty (30) days without pay. Even a probationary employee is entitled to this benefit, provided she meets the conditions required by the Social Security System (SSS), such as having made the necessary contributions.

Important Note: Employers are required to observe the principle of non-discrimination and to refrain from terminating a probationary employee just because she has taken or is about to take maternity leave. The reason for any termination must hinge on objective criteria connected to job performance and communicated standards, never on the mere fact of pregnancy or any absence that is in line with legally allowable maternity or sick leave.

III. Attendance and Absences Due to Pregnancy-Related Medical Conditions

Sick Leave and Medical Certificates
Although the Labor Code does not mandate a specific number of paid sick leave days (these are usually found in company policy or collective bargaining agreements), it is incumbent upon the employer to observe fair and non-discriminatory protocols when evaluating absences. If a pregnant employee accumulates absences due to prenatal complications, she must provide relevant medical certificates or documentation to substantiate the necessity of her leave.
Balancing Company Policy and Legal Protections
a. Company Discretion on Attendance
While employers generally have the right to set and enforce attendance policies, they must ensure these policies do not indirectly discriminate against pregnant employees. Repeated, unexcused absences might be a ground for dismissal in certain cases; however, absences due to legitimate medical reasons (especially pregnancy-related) should be handled with due consideration.
b. Reasonable Accommodation for Pregnancy
In line with the constitutional mandate to protect working women, Philippine labor law jurisprudence has developed the notion that employers should explore reasonable accommodations for a pregnant employee when her medical condition requires it. This may involve a lighter workload, adjusted working hours, or other measures that enable her to maintain her employment despite pregnancy-related challenges.
Probationary Employee Absences vs. Performance Standards
Employers must ensure the standards set for performance evaluation are based on job requirements and not extraneous factors. When evaluating a probationary employee’s attendance record as part of overall performance, an employer must carefully distinguish between absences that are unauthorized and those that are protected or excused by law (i.e., maternity leave, illness, or other legally sanctioned reasons). Terminating employment due to absences specifically linked to a medically certified pregnancy complication may be viewed as discriminatory.

IV. Grounds for Termination During Probation

Just Causes for Dismissal
Under Article 297 of the Labor Code, an employee may be terminated for serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud, commission of a crime against the employer or the employer’s family, or other analogous causes. For a pregnant employee to be validly dismissed, her wrongdoing must clearly fit within these enumerated or analogous causes.
Authorized Causes for Termination
Article 298 (formerly Article 283) outlines authorized causes, such as redundancy, retrenchment to prevent losses, or closure of business. These are typically economic or business-related grounds rather than performance-related. A pregnant employee can still be affected by a legitimate retrenchment or company closure, provided the employer complies with due process and pays the requisite separation benefits.
Non-Compliance with Probationary Standards
If the probationary employee fails to meet performance benchmarks that are bona fide, job-related, and consistently applied to all employees similarly situated, the employer may lawfully decide not to regularize her. The key is that the reason for non-regularization should be based on documented performance issues and not primarily on pregnancy or absences due to pregnancy-related concerns.

V. Due Process in Termination of Employment

Substantive and Procedural Due Process
In the Philippines, the concept of due process in employment involves both substantive and procedural components. Substantive due process focuses on the validity of the ground(s) for termination, ensuring that the employer’s cause for dismissal is real, actual, and in accordance with the Labor Code. Procedural due process addresses the steps that the employer must follow—generally a two-notice rule—before effecting termination.
The Two-Notice Rule
When terminating a probationary employee, the employer must serve:
- A first notice indicating the specific grounds for termination and providing the employee with an opportunity to explain or defend herself.
- A second notice informing the employee of the employer’s decision to dismiss her after duly considering her explanation (if any).
Although there is occasional debate in jurisprudence whether the two-notice rule strictly applies to probationary employees who fail to meet performance standards, it is safest for the employer to abide by this procedure to avoid potential legal disputes.
Documentation and Evidence
Adequate documentation is crucial in ensuring compliance with due process. This includes attendance records, performance appraisals, memoranda warning the employee of any deficiencies, and any relevant medical certificates or communications that establish the reasonableness of the absences. Proper documentation protects the employer by demonstrating that the employee was given notice and an opportunity to comply with performance standards, and that the termination was not based on discriminatory grounds.

VI. Discrimination Issues and Pregnancy-Related Claims

Unfair Labor Practice vs. Illegal Dismissal
Termination or other adverse employment action taken due to pregnancy may be interpreted by some as a form of unfair labor practice. However, typically, such discrimination claims are filed as illegal dismissal suits under the Labor Code or as discrimination cases under the Magna Carta of Women.
If a pregnant employee is dismissed during her probation without valid grounds or due process, she may file a complaint for illegal dismissal before the Labor Arbiter. If the employer fails to prove that the dismissal was justified, the employer may be ordered to reinstate the employee and pay back wages.
Remedies and Damages
Should an illegally dismissed pregnant probationary employee prevail in litigation, she may be entitled to reinstatement (if still feasible), full back wages from the time of dismissal up to final judgment, and other damages under the Civil Code if malice or bad faith is proven. In some instances, moral and exemplary damages may also be awarded.
Burden of Proof
It is a well-established principle that in illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid and legal cause. Where pregnancy is a factor in the termination, the employer must convincingly demonstrate that the dismissal was based on reasons unrelated to the pregnancy, such as verifiable performance failures or violations of company rules.

VII. Best Practices for Employers

Clear Employment Contracts and Policies
Employers should craft comprehensive probationary employment contracts, detailing performance metrics, attendance requirements, and references to the company’s code of conduct and policies. Communication of these metrics at the outset of employment is pivotal.
Regular Performance Evaluations
Document every performance review session, especially if the employee is failing to meet certain benchmarks. Provide constructive feedback and adequate time or support to improve.
Reasonable Accommodations for Pregnant Employees
Show a genuine willingness to accommodate pregnancy-related work restrictions. If the employee can still fulfill essential job functions with minimal adjustments, the employer should strive to implement those changes.
Compliance with Medical Certificates
In the event of pregnancy-related absences, ensure that the employee has furnished the necessary medical documents. Review these documents carefully and maintain records in the employee’s file.
Avoid Discriminatory Language and Decisions
Train supervisors, human resources staff, and managers to be mindful of language and decision-making processes that could be perceived as discriminatory. Avoid remarks linking an employee’s pregnancy to any adverse employment action or evaluation.
Observing Due Process
Even if the employee is on probation, employers should follow the two-notice rule if contemplating dismissal. This practice, while more rigorous, provides legal safeguards and demonstrates good faith on the part of management.

VIII. Interaction with Other Applicable Laws

Social Security Act of 2018 (Republic Act No. 11199)
This law, amending the earlier Social Security Act, ensures that pregnant employees with sufficient SSS contributions are entitled to maternity benefits. For a probationary employee, the same principle applies; if she meets SSS’s eligibility requirements, she is entitled to receive maternity benefits.
Philippine Health Insurance Corporation (PhilHealth)
Hospitalization and medical needs arising from pregnancy-related complications may also be covered by PhilHealth. Employers must assist in ensuring proper remittances and documentation so that pregnant employees can avail themselves of relevant health benefits.
Local Ordinances and Company Policy
Certain local government units may have additional ordinances or programs that provide further support or protection to pregnant employees. Employers should be aware of local laws to provide consistent, comprehensive compliance and care.

IX. Case Law Illustrations

Discrimination on the Basis of Pregnancy
There have been cases where the Supreme Court ruled that terminating an employee simply because of her pregnancy constitutes illegal dismissal. In those decisions, the Court underscores that mere absence from work due to pregnancy complications, when supported by medical documents, cannot be used as a ground for termination.
Failure to Meet Probationary Standards
Conversely, there are instances where the Supreme Court has ruled that an employer’s refusal to regularize a probationary employee was valid when objective proof was presented showing the employee’s failure to meet bona fide performance standards. The Court clarifies that pregnancy does not give an absolute shield from lawful termination if independent legal cause exists.
Importance of Clear and Reasonable Standards
Another recurring theme in jurisprudence is the emphasis on the requirement that the standards for evaluating probationary employees must be clear and job-related. Vague, arbitrary, or inconsistently applied standards risk being struck down by labor tribunals or the courts.

X. Conclusion and Practical Considerations

Balancing Employer Interests and Employee Rights
Employers must balance legitimate business interests, such as the need to maintain productivity and ensure discipline, with the constitutional and statutory mandates protecting pregnant employees. While the probationary period is a rightful avenue for an employer to assess fitness for the role, pregnancy cannot serve as a basis for discrimination or otherwise unlawfully depriving an employee of her due process rights.
Documentation and Good Faith
The importance of careful documentation cannot be overstated. Companies must evidence the employee’s awareness of performance standards, the communication of these standards, any warnings or improvement notices, and the final basis for the termination. If the records indicate that the employer gave the pregnant employee every reasonable chance to meet performance expectations, and the dismissal decision was entirely unrelated to her pregnancy, it is more likely to withstand legal scrutiny.
Legal Consultation and Policy Review
Employers should engage competent legal counsel when dealing with sensitive situations like a pregnant probationary employee. This includes reviewing company handbooks, drafting policy manuals, and training human resources staff on fair and lawful employment practices. Such preventative measures help minimize the risk of labor disputes and uphold the principle of fairness in the workplace.
Workplace Sensitivity and Culture
Beyond legal compliance, fostering a workplace culture that supports pregnant employees and working mothers can yield long-term benefits for both the employee and the organization. Sensitivity training and open communication often help build trust and loyalty, which can, in turn, enhance productivity and employee retention.

Final Thoughts
The protections granted by Philippine law to pregnant employees, including those on probation, underscore the broader objective of social justice enshrined in the Constitution: to protect vulnerable segments of the workforce from unlawful discrimination. Employers, therefore, must carefully navigate the intersection of management prerogatives and employee rights, ensuring that any adverse action taken against a pregnant employee rests on lawful grounds and is carried out in accordance with due process. Probationary employees, in particular, must be afforded a fair chance to demonstrate their capability, and pregnancy-related absences (when properly documented) should not be used as a pretext for termination.

In conclusion, if a pregnant probationary employee has multiple absences due to a sensitive pregnancy, the employer must be meticulous in examining the circumstances. Provided the employee satisfies company policies for leave documentation—such as presenting valid medical certificates—and is evaluated based on established performance standards, employers should proceed with caution in deciding whether to continue or terminate the probationary employment. An employer’s failure to observe due process or reliance on pregnancy as a ground for dismissal may result in legal liability, significant monetary awards, and reputational harm. Legal counsel is strongly recommended to ensure that the employer remains compliant with all legal requirements, thus fostering an equitable, dignified, and law-abiding workplace for all.