Can Pregnant Employees Be Retrenched in India? Understanding the Legal Protections

Hi Vrinda,

I wanted to inquire if there are any laws in India that address the retrenchment or termination of pregnant women. In essence, can an employee be retrenched if she is pregnant? Alternatively, is there any legislation that prohibits a company from hiring a pregnant candidate?

Thank you for your insights!

Regards,
Vrinda

Hi Vrinda,

Why do you want to retrench/terminate a pregnant woman? Just send her on maternity leave for 90 days after discussing and finalizing the policy regarding this issue with your top management.

Regards,
Narendra

Hey, I do not want to retrench anyone! I am asking if an employee could be protected from retrenchment due to the existence of such a law?

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There is no law that can stop a company from hiring a pregnant person. However, if the job profile requires the individual to not take leave and be fully prepared to assume a significant amount of responsibilities, the company may consider hiring another person. Nevertheless, it is important that the candidate is informed before being hired that maternity leave may not be an option. Failing to do so would be unfair on the part of the company. It is crucial to address all these considerations before making a hiring decision.

There is NO LAW:

a. that permits you to retrench employees just because they are pregnant.

b. that disallows or bars the employment of pregnant women.

Vasant Nair

Dear All,

Please find below some points regarding the Maternity Benefit Act 1961:

Employment of, or work by women prohibited, during certain periods.

4. (1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy].

(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy].

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise adversely affect her health.

(4) The period referred to in sub-section (3) shall be

(a) the period of one month immediately preceding the period of six weeks before the date of her expected delivery;

(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

Right to payment of maternity benefit.

5. [(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery, and any period immediately following that day];

Explanation. — For the purpose of this subsection, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest.]

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery:

Provided that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

Explanation. — For the purpose of calculating under the subsection the days on which a woman has actually worked in the establishment [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

[(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:]

Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:

[Provided further that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled to the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.]

[Continuance of payment of maternity benefit in certain cases.

5A. Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees' State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.]

[Payment of maternity benefit in certain cases.

5B. Every woman —

(a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply;

(b) whose wages (excluding remuneration for over-time work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and

(c) who fulfills the conditions specified in sub-section (2) of section 5,

shall be entitled to the payment of maternity benefit under this Act.]

Regards,

Sidharth

Hi Vrinda,

There's no such law that gives you the right to fire a pregnant employee. Also, regarding your second question, my answer would be that only if the nitty-gritties of the job demand a full-time commitment without any leave, then this should be made clear to the candidate at the time of the interview. This way, even the candidate doesn't find themselves in a difficult situation later on. However, the law doesn't permit even this bias.

Whenever such questions are raised in the community, I normally tend to ask myself: even if the law had given you the power to retrench such employees, would you have justified this action as a human? I mean, come on, every female faces such a situation in her life when she starts a family, which is her right. Her education and capabilities have also given her the right to work and excel in professional life. So, who are we to snub any of her basic rights? And then, in our HR policies, we boldly state that in our organization, there is no discrimination in terms of gender, caste, color, or creed.

I'm sorry if you feel I overreacted, but that was just what I felt.

Regards,

Neha

Dear Malik sir,

I want to share a problem in my company which has been faced by me for the last three months, so please give me suggestions.

1. The company is not following any policy.
2. The company has been incurring losses since last year.
3. The boss and our company owner favor those who use sycophantic methods.
4. I am the only HR person here, but I don't have any authority.
5. Salaries are not being paid on time.
6. They are not following government policies, as they are not submitting returns on time.

I have completed my MBA (HR) from a reputable college in the 2008 batch and have 2 years of work experience before my MBA. I am looking for a job. Am I right?

In this situation, what can I do? Please suggest me.

Regards,
Amrish Singh Raghuwanshi
Mob. 9827071872
Email- amrish.hrnatrajfoods@rediffmail.com

Dear Vrinda,

It is really atrocious to even think of such a law. It is not constitutional and goes against the very basics of ethos and ethics we follow. It is not only bad labor practices (Unfair Labor Practices) but also a violation of Human Rights.

Regards,
SC

I am sure what Mr. Kumaresank means is that in following the legal process defined in Section 25F of the ID Act, even pregnant women can be included in the list of workmen who are to be retrenched.

The main criteria to be followed is "First Come, Last Go" (One goes by the dates of joining of employees).

Vasant Nair

Thanks to all of you. I think there is a slight disconnect here... my question was not if it's legal to fire a pregnant employee or not. It was rather that if there was retrenchment happening in the company - can you legally include pregnant employees (not specifically choose them!) in this list, or are they safeguarded by some law against retrenchment?

Do revert with revised opinions! Thanks!

Once the employee gets pregnant, she is covered under the Maternity Benefit Act. During her maternity period, an employer cannot retrench female employees as per the Maternity Benefit Act.

Regards,
Sidharth

In India, the law is liberal towards women and takes due care so that they are not exploited and offers benefits to them. The maternity leave has been increased to six months.

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