Navigating India's Laws on Terminating Pregnant Employees During Probation: What Are Your Options?

Hi all,

I would like to seek advice from you about India's termination legislation regarding pregnant employees who are still in their probation period and have been employed for less than 80 days.

The employee has joined the company for less than 80 days and has not been performing well since she started. She has recently been found to be pregnant. Could you please let me know the legislation in India, regarding whether the employer could:
- provide disciplinary action during this period;
- terminate one's contract when she is pregnant;
- terminate one's contract during the probationary period when one is pregnant;
- if yes, is there any severance pay required?

Appreciate your input soon.

Thank you.

ST

Hi,

If she is not performing well and she is in the probation period, then she can be terminated. The procedure you can follow is as follows: first, you can issue a show cause notice to her and give her some time (7 days) to respond in writing regarding the cause behind it. If the cause justifies the situation, then consider keeping her; otherwise, after 7 days, issue a termination letter.

Hi Anjali,

Thank you for the detailed information. Is the employer requiring to pay 12 weeks of maternity leave pay and severance payment?

Thank you.
Regards,
ST

Hi ST,

No, the employer has no obligations as she is not a confirmed employee, and then her performance is not satisfactory. Only a 7-day show cause notice is sufficient in this case.

Dear [Recipient],

If you have placed someone on probation due to unsatisfactory performance, it is essential to provide them with an opportunity to improve by issuing letters outlining their weaknesses. However, in your situation, it appears that you are not primarily concerned about the individual's performance but rather about their pregnancy. Consequently, you cannot terminate their employment based on this reason. This approach is disheartening from an HR perspective.

Thank you,
J. S. Malik

The Maternity Benefit Act states, "No woman shall be entitled to MB unless she has actually worked in an establishment of the employer from whom she claims MB, for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery."

In your case, you have to consider her expected delivery date. If she works for more than 80 days, whether in a probationary or temporary capacity, you are required to provide the maternity benefit.

Sankar

My personal opinion is that it is very unfair to terminate an employee because she is pregnant while on probation.

I was pregnant while I was on probation (in one of my previous jobs). However, I handled a whole HR department alone as the HR manager resigned during my probation.

However, if someone is not performing well during the probation, then termination may be necessary.

Hi,

Please advise... Is maternity benefit mandatory? Should all companies implement the M.B. in their policy? What if a company terminates a woman because she is pregnant?

Regards,
Divitha.

Hi,

Always, the employer would ratify an agreement with the employee when he/she joins the company. It is permissible by law that an employee under probation can be terminated if the performance is unsatisfactory.

Even during the probation period, if an employee requests maternity leave (under the Maternity Benefit Act 1961), the employer is obliged to sanction it as it is the employee's privilege. The duration is six weeks before delivery and six weeks after delivery upon the submission of medical certificates. Additionally, the employer is responsible for providing three months' salary during maternity leave.

Severance pay is not mandatory, but maternity benefits are. An employer can inquire and seek explanations from underperforming employees. In a show-cause notice, a time limit can be specified, stating that failure to respond within the stipulated time with a valid reason will result in serious disciplinary actions. If the employee fails to respond promptly, the employer has the right to take immediate action.

Ultimately, it is at your discretion to decide whether to retain such an employee on your payroll.

If you have further questions, feel free to give me a call.

Hi ST,

You can't terminate her unless there is a strong reason. One more important thing to remember is she may not accept the termination as she may be a top performer. You can only terminate her in one way, i.e., in case she doesn't come to the office for 3-4 days without any prior information, only then do you have the right to terminate her.

Do let me know in case you require any inputs from my end.

Hi,

Always, the employer should ratify an agreement with the employee when he/she joins the company. It is permissible by law that an employee who is under probation can be terminated if the performance is unsatisfactory.

Even during the probation period, if an employee requests maternity leave (under the Maternity Benefit Act 1961), the employer is obligated to approve it as it is the employee's privilege. The duration is six weeks before delivery and six weeks after delivery upon submission of medical certificates. Additionally, the employer is required to provide three months' salary during maternity leave. Severance pay is not mandatory, but maternity benefits are.

There is nothing preventing an employer from seeking an explanation from an underperforming employee. In a show-cause notice, you can specify a time limit, stating that failure to respond within the stipulated time with a valid reason will result in serious disciplinary action. If the employee fails to respond promptly, you have the right to take immediate action.

Ultimately, it is at your discretion to decide whether to retain such an employee on your payroll. If you have further questions, feel free to contact me.

I recommend putting her on a Performance Improvement Plan (PIP) for a month and closely monitoring her performance before taking any action. This is just a suggestion; otherwise, the situation may escalate.

Thank you,
Ankur Singh

User Input:
That is what this fraternity expects from members. This means the Solution with the reference of the law. Correct response from you. Regards, Corrected Version:
That is what this fraternity expects from members. This means the solution with the reference of the law. Correct response from you. Regards,

Dear Soo Teng,

You are mixing two issues together, I guess.

One issue that may likely fall under the Industrial Disputes Act, 1947 is as follows:

Your contention is that you recruited a female employee and kept her on probation. During her probationary period, you found out that her performance is not up to the mark and she is not fit for your organization.

Now, you wish to terminate her services before she completes the probationary period.

Under the above circumstances, you will have to check under what capacity she is employed. Whether she enjoys any protection under the Industrial Disputes Act, 1947 or not.

If she falls under the definition of Workman as per Section 2 (s) of the I.D. Act, 1947, she may raise an industrial dispute at a later stage.

This will, however, not stop you from terminating her services provided you terminate her services by way of discharge simplicitor so that the termination will not amount to retrenchment. It will also not cast any stigma on the employee. While terminating the services, you will have to pay one month's notice pay to the said employee.

The next issue is the Maternity Benefit Act, 1961.

If an employee draws a salary/wage below Rs. 10,000/- per month and the area from where your company is operating is covered by the ESIC, she will not be covered under the M.B. Act, 1961.

In my opinion, even if she is covered under the M.B. Act, 1961, it should not stop you from terminating her services by way of discharge simplicitor.

Regards,

Manoj

Dear All,

Performance, etc., is not the only criteria; you will have to strictly follow the Maternity Benefit Act. Also, see the Employee definition in the Act. It may even be construed as Sexual Harassment.

With Regards,

V. Sounder Rajan

E-mail: rajanassociates@eth.net

Hi,

I agree with Mr. Afsal Abdulkhani, but even in the Maternity Act of 1961, it is not stated that if an employee is performing or not performing well in the organization, then the management has all the right to take necessary action towards the employee.

However, you must be very careful while terminating any employee. I suggest reviewing the appointment letter that was issued to the employee at the time of joining the organization and following the same procedure with every individual employee of the organization.

If the appointment letter does not clearly specify the termination process, then it is essential to focus on this aspect before terminating the employee. It is better to first discuss with the particular employee about any inhibiting factors and where things might be going wrong. This is especially important as the employee is still in the probation period and pregnant.

Since she has been working with your organization for 80 days, it may be premature to judge her performance at this point. She needs time to acclimate to the company and the projects assigned to her.

Before taking any action against the employee, have a discussion with her senior and then proceed with necessary precautions. Even after discussions, if termination seems necessary, gather reports regarding her pregnancy and make a decision in accordance with company policies. If there is no policy in place, frame one immediately and proceed accordingly.

Regarding compensation, she may not be entitled to Maternity Benefits (MB) as she has not applied for maternity leave. Ensure she does not apply for maternity leave, as then the organization would be obligated to pay her salary for up to 12 weeks.

If you have any further questions or doubts, please feel free to reach out using the provided contact number or email address.

With regards,
Satya Penubothu

I think you need to rework on the company's recruitment process. This is a really bad part of your role as an HR person - to consider terminating a pregnant woman who has just joined the organization. This is not an ethical practice. She should be helped and given a chance to improve. Trust me, if she is physically unfit to perform well, she will leave on her own, and if she is not sincere towards work, then also she should be given a chance. There is no point in terminating an employee just because she is pregnant, regardless of whether she is within probation or confirmed.

I would suggest you talk to her personally to understand her current situation and future plans, and ask her why she is not able to perform up to the mark. This can help you decide the right course of action in such a situation. Behave like an HR professional rather than a departmental clerk, and think broadly; you will be able to understand the right action to take in this scenario. HR's job is to retain people, train, and motivate them for better work rather than terminating them for trivial reasons in a hurry.

Malik, you are 100% correct. I don't know why some HR people fail to understand human values. If she is pregnant, terminating her will result in a lot of mental pressure on her, which could adversely affect the child. Please consider this before taking any action.

It's another thing, how does this discussion help that employee/employer... (I just hope she will be treated in an ethical manner);

But meanwhile, I have learned a lot about the Maternity Benefit Act. Thanks to all for sharing your valuable knowledge.

Special thanks to Rupesh for the notes.

Services of an employee who is on probation can be terminated with a 24-hour notice. Please check the terms of her employment as stated in her appointment letter. If there is a clause allowing the termination of services by either party with a 24-hour notice during probation.

Pregnancy should not influence her performance during the probation period. It is advisable to build a record before terminating her services, such as issuing warning letters, creating file memos, advisory memos, etc. before termination. The Maternity Benefit Act clause is applicable to employees on maternity leave.

If she is in a bargaining category, please ensure to adhere to the principles of natural justice. This will help in case of litigation, preventing potential issues.

Dear Ninad,

I agree with your point that pregnancy should not be an issue when terminating an employee. However, taking punitive action is a very drawn-out process. One has to follow the principle of natural justice, build a proper case against the employee, and go through a painful process of conducting an inquiry, and so on. In the end, the employee always claims to be victimized. These kinds of cases need to be handled very sensitively.

In my view, the method of discharge simplicitor is quite effective. There is no need to provide any explanation or accuse an employee of non-performance. Simply issue a termination letter citing the clauses of the appointment letter and provide one month's notice pay. Employers have the right to recruit as well as the right to terminate.

Regards,
Manoj

Before recruiting, you can ask for a medical certificate from the employee. If she is pregnant, you can decide whether to employ her or not because once she is issued an appointment letter, she is authorized for all the benefits.

Termination of an employee always requires a show-cause notice or warning letter. An employee can be terminated even if he is issued a letter of confirmation if he does not perform according to the guidelines.

Regards

Pregnancy does not affect the intention of a good worker. If your intention is to terminate this worker solely due to her pregnancy, that's bad. Otherwise, you can act as mentioned in the Certified Standing Orders of your factory.

Hope that's clear.

Singh

I have read all the comments, but nobody mentioned natural justice. It is understandable that she did not complete 80 days in the organization, making her ineligible for maternity payment but eligible for maternity leave without pay. How can we overlook this issue? While she may be a poor performer, the fact remains that she is pregnant now. As per natural justice, she has the right to take leave during this period (without pay). The employer does not have the right to take actions that go against natural justice.

Regards,
Vijayender Chandel

Discriminatory Termination Practices

Terminating someone because she is pregnant is discriminatory, and I'm sure it would be illegal as well.

I read all the comments. I am satisfied with Mr. Malik's comments. Whether the employee is on a probation period, it does not mean that she is not a human being. We have to follow the natural justice procedure with every employee. Although the maternity act does not apply to her due to her period of presence, she can get leave without pay for such a period on presenting medical certificates. So, give her some time, and understand her situation, which every woman suffers.

Regards,
Vijayender Chandel

You have two issues at the same time: 1. About her performance 2. Pregnant. Both issues are in different verticals, so as an HR person, we cannot proceed with anything that you have stated here.

Provide Disciplinary Action During This Period:

- Terminate one's contract when she is pregnant;
- Terminate one's contract during the probationary period when one is pregnant;
- If yes, is there any severance pay required?

What exactly we can do is just show our humanity here, no other go.

1. Call her and find the problem with her performance (because when we select a candidate, we surely know how they will perform). If the problem is indeed with the work, then you can very well talk to her directly about resignation, not termination.

2. You can tell her in a positive sense that we are okay if she resigns within a week also, just take care of her health because health is more important than wealth. This gives the employee great strength rather than going into a bad mood or a disturbed situation, which disrupts our business activity.

3. Get everything from her in a clear written format (Resignation Letter) and relieve her accordingly.

4. Avoid unnecessary issues while terminating unless it is mandatory by all means.

At every point, we also consider labor laws, human rights, and so on.

This would be my choice always.

Regards,
MD

Understanding the Maternity Benefit Act and Termination Policies

Firstly, it is clear from the Maternity Benefit Act that an employee needs to have worked for 80 days in the preceding year or before the expected date of delivery. Based on the information provided, it appears that she has recently joined. In this regard, the following points are important for your consideration:

1. Examine the circumstances contributing to her underperformance. Do not use the pregnancy period as a criterion for termination. You can initiate termination proceedings during the probationary period after providing a show cause notice, but terminating a pregnant woman during this time goes against HR best practices.

2. Although she is on probation, you must approve leaves for her, and these leaves will be without pay.

3. Allow her some time to demonstrate her performance as the pregnancy period is crucial for any woman, and termination may cause mental stress. Therefore, as a compassionate human being, try to understand her situation. From an HR perspective, why was she hired without a medical fitness certificate (regarding pregnancy/other health conditions)?

Regards,
Vijayender Chandel

You should wait until the probation period because every company evaluates the performance of employees during this time. If she does not perform satisfactorily after the probation period, then you should terminate her from the job.

Regarding Pregnancy and Leave

Regarding the issue of pregnancy, that should also be considered. If she wants to take leave in this case, then leave should be granted for some days. However, if after completing the leave and probation period she does not perform well and satisfactorily, then you should terminate her.

In this situation, it is essential to consider both as an employee and as a person because in HR, it is necessary to consider both aspects.

Regards

Dear all Learned Friends,

I need your suggestions on a case related to pregnancy. A confirmed Sales Executive received a performance increment in April 2014 and was put on a PIP in August '14 for one month when she applied for Maternity Leave. The employer placed her on a PIP when she was seven months pregnant. She was so mentally depressed that she delivered a seven-month premature baby, and the doctor also mentioned in the discharge certificate that she is suffering from depression and stress.

Legal Viability of PIP During Pregnancy

Is it legally viable to put a confirmed employee on a PIP because of a fabricated non-performance story? The lady has been working in an MNC Surgical Company as a Sales Executive for the last two years.

Please suggest.

Regards

Performance Review and Legal Compliance for Pregnant Employees

If, due to her annual performance, she received an increment in April 2014, what targets were assigned after April 2014? If not, it is arbitrary to set new targets in August 2014 after she applied for maternity leave. In fact, it is in violation of section 4(2) and (3) of the Maternity Benefit Act. Though a Performance Improvement Plan (PIP) can be challenged before the concerned authorities under the Act, firstly, examine her primary duties to determine if she falls under the definition of a 'workman' as per the Industrial Disputes Act. If so, then implementing a new PIP is also in violation of section 9A of the Industrial Disputes Act. Take appropriate action under the Industrial Disputes Act and the Maternity Benefit Act.

Thanks,

Sushil

In continuation of the above viewpoint, I feel that the employee, being a sales executive of a surgical company, which may be said to fall in the category of a pharmaceutical company, the provisions of the Sales Employees (Conditions of Service) Act, 1976, apply to her. She has to be treated as a workman, and thus under Section 38-B of the Bombay Shops and Establishment Act, the provisions of Industrial Employment Standing Orders are applicable to her. If that be so, the only misconduct applicable is "habitual negligence or neglect of work." The proposed action of the employer can never be said to fall under the habitual category, especially just after her giving maternity notice. Thus, any proposed action of the employer can be successfully challenged.

Furthermore, under Section 9A of the ID Act, the employer could not have changed conditions of service by laying down new standards of job duties or targets. It also leads to unfair labor practices on the part of the employer when it is acting against the above-said provisions of the MB Act.

Thanks,

Sushil

Don't terminate her immediately. In your company's HR policy, did you mention termination of pregnancy during the probation period? You can assess her performance first. Call her and talk to her about her performance, give her a chance to improve, and inform her that if she does not improve, management will take immediate action against her. Check her improvements and then take necessary action.

Act doesn't say anywhere that if a female employee is pregnant and not performing well, it means you can't terminate her. However, here you have to follow the company policy and handle such situations with care. My suggestion is to extend her probation period by 3 months. Issue her a letter stating that she will be under observation for XYZ days, and if she doesn't show improvement in her performance, the company may take strict action. This approach ensures that the company is on the safer side and avoids any abrupt actions.

Regards, Rupendra

Pregnancy shall not be taken as a blanket to cover an employee's non-performance. It should not be taken as a protective device either. Though, by virtue of Section 12 of the Maternity Benefit Act, 1961, dismissal or discharge of a woman during her absence in accordance with the provisions of the Act (that is during maternity leave days) is unlawful, the proviso to Section 12(2)(a) states that dismissal or discharge during this period for any offense of gross misconduct is lawful.

Here, a non-performing employee shall be warned and punished as per the existing norms of the company. Pregnancy should not be seen as an armor to continue such misconduct (non-performance is, in effect, a misconduct). However, in such occasions, the usual practice is to keep quiet so as to avoid numerous queries and accusations of having harassed a pregnant woman employee.

Regards,
Madhu.T.K