Harsh Kumar Mehta
Consultant In Labour Laws/hr
Hr Consultant
+2 Others

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Hi All,

Greetings of the day !

Query - I am here to take your valuable insights about an issue which I've faced recently.

I work for an IT Company. A employee is in her Maternity period. She is eight months pregnant. She has joined us in May ' 16 .

According to HR manual, her probation period will end in mid week of November . Her delivery is due in mid week of December ' 16.

We do performance review after every 3 months in probation period ( i.e. 6 months after joining ) . But her rating in performance sheet is below average .

HR has informed her in mid way ( and in a very polite manner by keeping her pregnancy in mind) to improve her performance . But she hasn't improved her performance.

After reviewing her performance, she was asked to resign but she will be entitled to Maternity benefits ( of our Health insurance plan ) .

Company will support her in every manner but cannot give her confirmation letter of employment as her performance is below average.

Management took this decision only on her performance factor. But she put the mail of her Maternity leave of 3 months . Kindly suggest us with your valuable insights. How a HR should proceed in these type of situations?

II) Is she eligible for ESI maternity benefits if she is in her probation period ?

" Apart from this, Company is providing her maternity coverage ".

Please provide your suggestion .

From India, Delhi
everything depends on management
if management allow her to get benefits, then she will get the benefit without confirmation even
she has to write to management one week before confirmation for an medical leave for one and half months, she will get ESIC benefit provided the management sign form 37 when needed, and aadhar /bank is seeded in her E-pahchan card, (TIC)
after the delivery she can submit resignation, or if the management wish so , they can keep the resignation in advance without date.
if management accept her leave application, then they hv not to confirm her neither she has to resign on the exact date, but can do it after leave also.
discuss the matter with employer, most of times HR/Employer are helpful.

1. Dear member, please confirm whether the woman employee in respect of whom you have submitted facts in this thread is covered under ESI Act, 1948 ?. And for how much period she has contributed / employer has deposited her contribution ?
2. Labour laws providing for the maternity benefits to the working female employees have no where provided for any condition of regular or permanent employment for eligibility. A woman employee even if under probation, but has completed minimum period of employment in the unit is entitled for maternity benefit either from ESIC (based on minimum contributory conditions as laid down in ESI (Central) Rules, 1950) or from employer in case of applicability of the Maternity Benefit Act, 1961 ( if the condition of minimum employment period has been completed by the claimant woman employee). Please see said Acts for confirming the eligibility conditions.

From India, Noida
As per your post she joined by May 2016. If she completes 80 days of attendance in your company from the expected date of delivery then she is eligible for maternity benefit as per Act. (Also she is eligible for ESI Maternity benefit)
From India, Chennai
Thanks for all your valuable suggestions . We haven't accepted her leave request for Maternity leave. Although, she has applied leave in mail.
ii) I want to ask one more thing.
Company is liable to pay her salary till 3 months.
Please throw some light on this.

From India, Delhi
grant of or refusal of maternity leave is sole jurisdiction of employer, but the employer can accept the leave request "without pay" benefits she can claim from ESIC

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