Hello Everyone,
I need your comments and suggestion for the below scenario;
1.Can employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non performance etc?
2.If not? Then what action can be taken against the employer?
3.Employer has not draft and displayed any policy such as Maternity Leave.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
Please advice.
From India, Mumbai
I need your comments and suggestion for the below scenario;
1.Can employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non performance etc?
2.If not? Then what action can be taken against the employer?
3.Employer has not draft and displayed any policy such as Maternity Leave.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
Please advice.
From India, Mumbai
Dear Maria,
Replies to your questions are as below:
1.Can employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non performance etc?
Reply: - When did woman employee communicate to the employer about her pregnancy? Did she intimate officially after her first trimester? Is the woman covered under ESI Act or Maternity Benefit Act (MBA)? Non-performance and maternity need to be seen differently. If employer has adequate evidence of non-performance, then he may terminate the services of pregnant employee. However, before termination, employer must conduct domestic enquiry. Moreover, woman employee needs to be given chance to improve her performance also.
2.If not? Then what action can be taken against the employer?
Reply: - If grounds of non-performance are fictitious then pregnant employee may approach labour office under whose jurisdiction the company office falls. Else she may report the matter to National Council for Women. However, it is better to make a complaint to the Labour Office.
3.Employer has not draft and displayed any policy such as Maternity Leave.
Reply: - it would be wrong to do so. It is mandatory to display provisions of MBA at the company premises. It is illegal to do so.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
Reply: - Since the total employee count is about 40, provisions of MBA very much apply to the employer. However, we need to know how many months or years of service woman employee has completed. Has she served for more than 80 days? If yes, then only she can claim maternity benefits.
Thanks,
Dinesh Divekar
From India, Bangalore
7884Replies to your questions are as below:
1.Can employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non performance etc?
Reply: - When did woman employee communicate to the employer about her pregnancy? Did she intimate officially after her first trimester? Is the woman covered under ESI Act or Maternity Benefit Act (MBA)? Non-performance and maternity need to be seen differently. If employer has adequate evidence of non-performance, then he may terminate the services of pregnant employee. However, before termination, employer must conduct domestic enquiry. Moreover, woman employee needs to be given chance to improve her performance also.
2.If not? Then what action can be taken against the employer?
Reply: - If grounds of non-performance are fictitious then pregnant employee may approach labour office under whose jurisdiction the company office falls. Else she may report the matter to National Council for Women. However, it is better to make a complaint to the Labour Office.
3.Employer has not draft and displayed any policy such as Maternity Leave.
Reply: - it would be wrong to do so. It is mandatory to display provisions of MBA at the company premises. It is illegal to do so.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
Reply: - Since the total employee count is about 40, provisions of MBA very much apply to the employer. However, we need to know how many months or years of service woman employee has completed. Has she served for more than 80 days? If yes, then only she can claim maternity benefits.
Thanks,
Dinesh Divekar
From India, Bangalore
1.Can employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non performance etc?
was the employer informed of pregnancy as provided in the act. If yes, employer can't terminate services. If the employer exerts pressure, she can lodge written complaint with Govt Labour office of the area. If employer terminates service after the employee has given intimation of pregnancy, it will boomerang on employer.
2.If not? Then what action can be taken against the employer?
Already explained above.
3.Employer has not draft and displayed any policy such as Maternity Leave.
Employer is not required to have own maternity leave policy, unless it is more favourable to employees. Yes, he is required to display abstract of the act. But non-display per se is a minor offence.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
He may say anything but the act applies to his company as he engages more than 10 employees. Tell him the same thru letter & if he refuses to abide by the act tell him that you will be constrained to lodge complaint with local GLO.
Let him reply by letter or mail that it is not applicable to him & you can carry the the same document to GLO of your area.
From India, Mumbai
was the employer informed of pregnancy as provided in the act. If yes, employer can't terminate services. If the employer exerts pressure, she can lodge written complaint with Govt Labour office of the area. If employer terminates service after the employee has given intimation of pregnancy, it will boomerang on employer.
2.If not? Then what action can be taken against the employer?
Already explained above.
3.Employer has not draft and displayed any policy such as Maternity Leave.
Employer is not required to have own maternity leave policy, unless it is more favourable to employees. Yes, he is required to display abstract of the act. But non-display per se is a minor offence.
4.Employer claims that Maternity policy does not apply to our firm.
5.Whereas the employees count is approximately 40.
He may say anything but the act applies to his company as he engages more than 10 employees. Tell him the same thru letter & if he refuses to abide by the act tell him that you will be constrained to lodge complaint with local GLO.
Let him reply by letter or mail that it is not applicable to him & you can carry the the same document to GLO of your area.
From India, Mumbai
Discontinuation of an employee whether she is pregnant or not, should follow fair procedures.
She should not get terminated only based on the grounds that she is pregnant and she is about to take maternity leave. It is offense as per MB Act.
But, no employee can evade or escape from genuine management action towards their non performance, misconduct etc., because they are pregnant.
All the action to be well documented with performance reports, communications, review meetings, corrective actions taken, training records and so on.
From India, Chennai
She should not get terminated only based on the grounds that she is pregnant and she is about to take maternity leave. It is offense as per MB Act.
But, no employee can evade or escape from genuine management action towards their non performance, misconduct etc., because they are pregnant.
All the action to be well documented with performance reports, communications, review meetings, corrective actions taken, training records and so on.
From India, Chennai
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Maternity Leave Policy - posting.doc
Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf