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Anonymous
Dear Members

My wife is 3 months pregnant and she is been asked to resign from her company, where she has been working for past 16 months. She is being literally forced to resign threatening that if she doesn't resign, they will terminate her. They are citing non-performance and irregular attendance as the reasons for forcing resignation. They issued her a letter (hard copy, not on email) some 3 weeks back, the same day she emailed HR informing her pregnancy and requesting flexibility in reporting time on account of medical reasons.

As to non-performance, my wife was confirmed in June 2017 and has been performing well in the work given to her. As to leaves, yes, she has taken way more leaves than a normal employee avails, but most of the leaves were approved and the balance being leave without pay. Also, the late coming was never approved by the boss and resulted in half-day leaves on most occasions in past 2 months. Can this be termed misconduct?

Please advise whether she can be terminated on grounds of misconduct and non-performance? Should she resign to avoid pink-slip?

There is no email asking her to resign nor any performance improvement warning except for the letter issued 15 days back citing above mentioned 2 reasons.
7th October 2017

Umakanthan53
Labour Law & Hr Consultant
+1 Other

Dear friend,
The fact of your wife being pregnant at the time she is asked by her employer to resign on the pretext of under performance makes the situation really precarious and complicated.
Since the pregnancy is in its early stage of three months, I presume that the fact would not have been conveyed to the employer officially. However, the frequency of her approved leave and the late attendance during the last two months as stated in the post might have prompted the employer to take cue of her pregnancy. As per the latest amendment to the Maternity Benefit Act,1961 effective from 01-04-2017 the maximum period of maternity benefit stands increased to 26 weeks of which not more than 8 weeks should precede the expected date of delivery. Therefore, in order to avoid this only, the employer has taken such a hasty and faulty decision of getting rid of her services on the ground of under performance that too very soon after her confirmation in June,2017.
Of course, sec.12(1) of the MB Act,1961 prohibits the discharge or dismissal of pregnant employee only during her absence from work any time during the 26 weeks. But ss (2)(a) of sec.12 mandates that such discharge or dismissal during any time of her pregnancy should not deprive her of the maternity benefit or medical bonus. Perhaps, this legal position would have escaped the attention of the employer and hence the compulsion of her resignation or threat of dismissal on the sudden ground of under performance as a pre-emptive measure. The emerging position, therefore, is the employer has to give her maternity benefit and medical bonus even if she is dismissed on the ground of misconduct provided the fact of pregnancy should have been intimated to him formally.
Hence, my suggestions in the order of priority are:
(1) Let your wife communicate the fact of her pregnancy to her employer immediately with a medical certificate.
(2) Let her not accept the proposal of resignation at any cost.
(3) Boldly face the disciplinary proceedings, if any taken otherwise.
7th October 2017 From India, Salem
Hi Sir,

How to handle such case, where in the concerned employee has actually performance and behaviour issues.

Regards
Kavita
10th October 2017 From India, New Delhi
Dear Friend,
You and your wife decide whether you want to go for a baby. If yes, ask your wife to communicate the fact of her pregnancy to her employer immediately with all medical documents(Patho test, Ultra Sound or Sonography test Report), refering the date & time of email sent earlier in this connection. Do not take a haste decission or bend upon the demand of resignation. Your game is over, if in any manner the employer able to get the resignation. The case of pregnency is the only immunity which can save her from action.

You also agree to point that there are facts stand in favour of misconduct aginst your wife for her irregular at duty due to absenting from duty and habitual late coming is cause of non-performance. Ask your wife to get the copy of standing order as an emploee she should have. The management will not leave it and they would go by as stated. It is your time to counter the proceedings. To ease your matter take a consultant.
10th October 2017 From India, Mumbai
Dear Kavita,
If the employee has really such issues warranting stern disciplinary action, the employee's pregnancy can not be a bar. However, what is important to be analysed is whether her pregnancy and the disciplinary action against her for some serious lapses on her part are just coincidental or a mere tactical and exploitative ploy adopted by the employer to deny her statutory maternity benefits. That's why sec.12 of the MB Act imposes certain restrictions on the right of the employer to fire a pregnant woman employee..
10th October 2017 From India, Salem
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