X company has hired a female employee on 15th April 2020. After a month, the company started facing issues with her performance. The company decided to give her verbal warnings instead of direct termination or any strict action. But, there seems to be no improvement till August 2020.

Meanwhile, the management and HR have decided to issue her PIP with 30 days' notice. But before doing this, She updated the company about her (2 months) pregnancy and her plans for the maternity leaves. Her clear intention was to avoid this termination, on the grounds of maternity benefits and rules.

Now, the Management team got into a confused state of whether to terminate or not to terminate her. If they go for it, she can file a case that because of maternity benefits the company has asked her to leave. If they donít, then she is an additional burden to the company for the next 15 months (9 months pregnancy + 6 months leaves).

So, on humanitarian grounds, the company decided to give her another chance by dropping an email which states about the performance dissatisfaction and that she needs to fix it ASAP, without writing anything about the termination. Now, she again took the advantage of this email, by spreading a verbal message among other employees that she has been harassed mentally during her critical days of pregnancy. Please suggest, what should be the appropriate action for such situations?

From India, Noida
Glidor
616

@swati
Chronological events calendar as per your post
1. April 2020, Joining
2. May 2020 , Performance issue, verbal notice
3. Aug 2020, no improvement so in sept 2020 the employer decided to issue PIP, but the employee updated the clause of Maternity with 2 months ........
Apr may June ( 3 months of employment, i e eligibility confirmed under maternity act ) and in sept she informs 2 months means as per your records expected date is in march,
4. as per your given inputs she is already on maternity leave, so where is performance issue right now?


@Glidor
Basically, her profile is a target based profile.
And performance issues were since the starting itself, but on humanitarian grounds, company doesn't wanted to take any strict action like termination. So they wanted her to improve via verbal & written warnings.
But when company started losing it's patience in terms of business loss, they were strict.
And she took the advantage of her situation to avoid her termination.
She even started to spread wrong words on the floor, that management is mentally harassing her.
The whole concern is, can the company terminate her on performance basis during her pregnancy period, because anyways she is not showing any signs of improvement ?

From India, Noida
Glidor
616

@Swati
There are multiple issues as per your post. if the employee is recruited on target based job, and the employee did not made compliance as per the employment terms, then the establishment can form a disciplinary committee and put the case there, and let them make appropriate decision.
Every document like target, incompliance and other issues should be produced to committee and the employee should be heard property by the committee before getting to any conclusion
Mere on verbal talks, nobody is authorized to make such allegations like misuse of maternity benefits on any employee


@Swati No action till she is no maternity leave. However, you can request her to to "work from home" during maternity leave. - S. K. Mittal 9319956443
From India, Faridabad
@Shobhit
WFH is by default already given.
My only concern is, if the company ask her to leave by giving proper notice and salary as applicable, will it be fine from legal perspective ?
Reason being, she is anyways not performing as per the expectation, and because of her maternity case, the company cannot pressurize for any small thing as well.
Secondly, allegation about misuse of maternity benefit is observed on the basis of reaction the company received from other employees.
Please assist on this point as well.

From India, Noida
rkn61
460

Please confirm whether the concerned woman employee is on maternity leave or the leave period is already over??
From India, Aizawl
Dear Swati,

Admittedly when her profile is target based and though she was found to have performance issues right from her appointment in April,2020, the management decided to put her on PIP in September.2020 only. By the time, the employee also informs officially about her being pregnant for 2 months in September,2020. Why can't it be a sheer coincidence? As such her probable expected date of delivery could be some day in March,2021 only. If so, she cannot proceed on maternity leave earlier than 8 weeks from the EDD . At times organizational gossip and politics can be greater than the organization and its problems. Therefore, gossips and heresays cannot become acceptable circumstantial evidence in disciplinary matters.

Since she was hired on 15th April,2020 only, she should be a probationer and you would have an exit clause in the contract of employment to do away with her services any time during probation, if her performance is not satisfactory. Why you failed to invoke this clause till September.2020 when you knew within a span of a month that she was an under performer? Whether you have documented her performance history? Your post is completely silent about such relevant details but hinges only on gossips culminating in the irresistible decision of sending her out so as to deprive her statutory maternity benefits. Sorry you can not do so as of now in view of the provisions of section 4 and section 12 of the Maternity Benefit Act,1961.

From India, Salem

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