Resignation Request by a Pregnant Employee Without Union Assistance: When is it Valid?

A recent decision by the Regional Labor Court of the 15th Region reaffirms a sensitive point in the relationship between employers and pregnant employees: a resignation request made by the employee herself, without the company being aware of the pregnancy, is valid and does not generate the right to temporary job security.

In the case analyzed, the Court overturned a lower court ruling that had invalidated the resignation of a pregnant employee and granted her the job security provided for in Article 10, paragraph II, subparagraph “b”, of the Transitional Constitutional Provisions Act. The company argued, in its appeal, that it was unaware of the employee's pregnancy at the time of termination, which would absolve it of responsibility and preserve the validity of the employee's expression of will. This argument was accepted by the panel.

Distinction in Relation to TST Precedents

The most relevant aspect of the ruling lies in how the rapporteur engaged with two precedents from the Superior Labor Court which, in a hasty reading, could lead to the opposite conclusion. The first is Topic 55, which requires union assistance in the resignation of a pregnant employee. According to the rapporteur, this requirement only applies when the pregnancy is already known to the parties, as this knowledge is what triggers job security and, consequently, the obligation to comply with Article 500 of the CLT (Consolidation of Labor Laws). Without the employer's knowledge of the pregnancy, there is no basis for requiring union approval, especially since Law No. 13.467/2017 eliminated the general requirement for union approval in contract terminations.

The second precedent is TST (Superior Labor Court) Precedent 244, according to which the arbitrary dismissal of a pregnant woman is invalid even if the employer is unaware of the pregnancy. Here, the rapporteur applied the distinguishing technique, understanding that the precedent deals with dismissal without cause initiated by the employer, a situation distinct from a resignation request made by the employee herself. For the panel, it is not possible to convert a resignation request into a dismissal without just cause when there is no allegation of fraud, coercion, or vitiation of consent, nor proof that the employer was aware of the pregnancy.

Burden of Proof and Limits of Employer Conduct

Two other points of the judgment deserve attention. The first is the distribution of the burden of proof: it was up to the employee to demonstrate that she informed the company of her pregnancy before resigning, which did not occur, as she limited herself to generic allegations. The second is the limit imposed on the company's conduct. The rapporteur made it clear that the employer cannot be required to actively investigate the employee's pregnancy status, for example, by requesting a pregnancy test at the time of termination, conduct that would constitute discrimination.

From a practical standpoint, the decision reinforces a criterion that is directly relevant to managing terminations: the job security of pregnant women presupposes that one of the parties is aware of the pregnancy at the time of contract termination, and when the termination is initiated by the employee herself, the burden of communicating the pregnancy falls on her. For the employer, the documentation of the termination process remains the main instrument of defense in any potential legal dispute. The handwritten resignation letter, the record of the termination interview, and evidence that there was no prior communication about the pregnancy allow employers to demonstrate, if necessary, the lack of knowledge of the pregnancy and the spontaneity of the employee's expression of will.

Finally, it should be noted that this understanding does not alter the constitutional protection afforded to pregnant women in cases of dismissal initiated by the employer, in which case TST Precedent 244 remains fully applicable.

Article written by: Rafael Mello and Letícia Neves.

• “"The job security of a pregnant woman presupposes knowledge of the pregnancy at the time of contract termination; when the termination is initiated by the employee herself, the responsibility for communicating the pregnancy rests with her."”

• “"The TST (Superior Labor Court) Ruling 55 and Precedent 244 do not automatically apply to resignations: without knowledge of the pregnancy and without vitiation of consent, the employee's resignation is valid."”

• “"The documentation of the termination (handwritten letter, record of the exit interview, and lack of prior communication of the pregnancy) remains the employer's main defense."”