Experience Letter Dilemma: Should We Issue It Despite Her Unnotified Break?

Dear Seniors, I need your guidance once again. One of our female employees had to terminate her seven-month pregnancy due to some reason. When this happened, she just called the office and said that she was not feeling well and wouldn't be able to come to the office, but she did not confirm how long she would be on leave. During her break period, she did not call the management once regarding her health reports or to show her interest in rejoining. After 2.5 months, she called to rejoin the office, which we accepted. However, after rejoining, she did not submit any medical reports or leave applications as proof, and we also did not ask, considering her difficult situation.

It has been 1.5 years since this matter, and she has resigned for better prospects. She is now asking us to provide an experience letter for the continuous period and is actively pursuing it. She originally joined on 03/01/2008, was on a break from 15/09/2011 to 30/11/2011, and left the organization on 31.05.2013.

Query on Experience Letter Issuance

My query is whether, as per the law, she should receive an experience letter for the continuous period, even though she was on a break of 2.5 months without proper intimation. When we denied giving her the experience letter, she presented a letter from a doctor stating that she was recommended bed rest for that duration.

Please guide on how to tackle this case.

Regards

It's surprising, shocking, and sad to find that even in cases where the employee had such a traumatic experience, the HR or the organization is being insensitive or inhuman, especially when issuing an experience letter.

Questions Regarding Maternity Leave and Termination

Was there any termination of services? Was the employee not eligible for maternity leave? Was she allowed maternity leave? Did she ask for maternity leave, which was due to her? During her absence, the reason for which is well-known, was she advised or counseled to avail of the maternity leave?

After denying her rightful maternity leave (which is available for termination of pregnancy/miscarriage), and now, for a mere absence of 2.5 months supported by medical certificates, the query is raised - whether she can get an experience letter for the continuous period? If it is not unfair, then what else can it be?

Impact of Pregnancy Loss and Absence

Losing a seven-month pregnancy takes its toll, not only physically but also mentally and emotionally. A 10-week absence on medical grounds is neither uncommon nor abnormal. In fact, it would be inhuman to force someone to work under such circumstances.

Where is the question of any break in her service when her unauthorized absence (though on justified medical grounds) has been condoned, and she has continued with her services?

Hope, while trying to answer the above queries, you will find your answer.

I also understand that it's beyond your sphere of influence to change things; however, you can at least let the management understand that denying her an experience letter (without any break as her service was continuous) would be unfair and against the prevalent laws, especially when she was denied any statutory maternity benefits.

Warm regards.

I seem to differ from the earlier response (from Mr. Raj Kumar Hansdah). In my view, the employee's employment is continuous, but the experience is not. The reasons for absence may be legitimate, but the fact is she has not performed any work in her employment. Therefore, the employer can rightfully deny issuing an experience certificate for the entire period of employment and state the fact that for the period of absence, the employee has not worked. While it would be the employer's right to be brutal about the facts of the situation, one must consider if it is worth and necessary to take a supposedly "principled stand" or "high moral grounds" and act difficult.

A period of 2.5 months is too small to make an issue of, and if one still insists on doing so, then one must also evaluate the quality and quantity of the employee's performance/contributions and be able to state (for example) that the employment period was "x" years, work was performed for "y" years, and the value addition was for "z" years. If one assigns values to "x", "y", and "z", one may painfully realize that employment of five years may show "quality contributions" amounting to just a year or so!

All would agree that this will be an entirely fallacious approach besides being unfair and extremely narrow-minded.

I recommend that as management and as HR, you should choose to be magnanimous and ignore this small period (and her behavior) from certifications, certify the total duration of employment, and relieve her!

Regards,
Samvedan

In all cases, both the employer and employee need to be responsible for their actions. To prove that the lady had some physical issues (even if not pregnancy-related), she must submit some documents such as medical reports.

Employer's Responsibility

If the employer (HR) was aware that she had pregnancy-related issues, he should have advised her to opt for maternity benefits under applicable laws. HR's role is that of a friend, philosopher, and guide. However, in this case, HR skipped all three roles.

Shared Accountability

I would say both sides played a dubious role and acted in an irresponsible manner, creating unnecessary ifs and buts.

Recommendation for the Employer

Still, the employer should play the role of a guardian and, after giving a strict warning, should provide her with the employment experience letter.

Regards,
Kamal

Though the employee did not follow certain procedural courtesies for taking leave, you have allowed her to report for duty and work for 1.5 years thereafter. Thus, you have gracefully condoned her conduct. It would not be fitting now to pick on her lapses to deny her an experience certificate and relieving letter, especially considering she was absent for only about 2.5 months in a five-year service period.

Additionally, you cannot treat a period of absence as a break in service in the eyes of the law after condoning her absence and allowing her to continue in service. Therefore, it would not be prudent to include the period of absence in the experience certificate. An experience certificate is not an attendance certificate; it should reflect an opinion on the general performance of an employee during their tenure. I suggest that you continue to exhibit the same grace you showed in condoning her absence by providing her with the experience certificate and relieving letter.

Regards,
B. Saikumar

Maternity Benefit Act 1961 and Experience Certificate

The Maternity Benefit Act 1961 is applicable to you. I presume that the benefits under the Act have not been claimed and paid for during this period, although you are entitled to them. Section 12 thereof clearly forbids an employer from discharging or dismissing an employee who is on maternity leave. Now that you have received the medical certificate, it is more than necessary to regularize your absence of 2.5 months. Hence, it would be proper to issue you the experience certificate as requested.

Regards,
KK

I agree with B. Saikumar. Also, as per the latest court judgment, unless a break in service is officially notified to the employee, it will not be considered a break in service. Just attendance not marked and salary not paid cannot be treated as a break in service.

Statutory Grounds for Maternity Leave

If we look into this matter on statutory grounds, she had already worked in a company for more than 80 days of continuous service before going on maternity leave. As per the maternity clause, a lady can avail leave for 90 days and an extra month without pay if the need is shown by the medical practitioner.

In the above-mentioned case, the pregnancy was complicated, and the lady didn't provide the medical certificate from an approved doctor, or even if she did, it was submitted too late.

Management's Responsibility

The fault lies with the management since medical reports should have been requested at the beginning. Alternatively, during the period when she did not inform about her status, the management should have sent a letter to her within 30 days of her approved leave termination, stating that her continuous absence could be considered voluntary abandonment of services. With the expiry of the last day to represent herself in the company, a letter should have been sent to her stating voluntary abandonment of services effective from the date she left the organization. By doing this, you would have complied with Section 2(OO) of the Industrial Dispute Act, 1947, and Clause 42(10) of the Indian Standing Order.

Issuing an Experience Certificate

As of now, there is no reason to exacerbate the situation, and the management should provide her with an experience certificate. However, in the experience certificate, it can be mentioned that during the period of service, the total number of working days is as calculated by your administration, and there was a discontinuation of service for 2.05 months. There is no statutory format for an experience certificate. Nevertheless, it would be highly unethical and inhumane to mention this, especially considering the short duration of discontinuation, especially on maternity grounds. We should not act in an inhuman way and should provide her with an experience certificate.

Regards,
Rajesh Rajput

Maternity Leave and Continuous Service: A Legal Perspective

As asked by Mr. Raj Kumar, did she sanction Maternity Leave as she is eligible to avail? This is a million-dollar question.

If she is not aware of it, did the HR department (on humanitarian grounds) send an application for applying for maternity leave to the hospital where she got admitted for the miscarriage? After returning from leave, did the HR fail to request the leave application along with the medical certificate to that effect and consider the same as maternity leave?

Did she receive pay during the break period? If she was paid for that period, then it is considered as continuous service.

If she did not receive her pay, then it is against the law, i.e., not following the Maternity Benefit Act by your company.

If you want to avoid unwanted litigation, then you must issue the certificate for continuous service and resolve the issue amicably. If you are not issuing the certificate or issue the certificate with a break during that period, then it is evident that you are not following the Maternity Benefit Act.

Think wisely and take the necessary action without further delay.

Many learned followers have given very valuable views. They have shown sympathy and concern about a female employee, motherhood, and the agony she had to go through due to some medical reasons connected with her pregnancy. However, rules are rules and law is law, which have to be followed in all circumstances. We may have sympathy, but if the law does not permit, nothing can be done in black and white.

Entitlement to Experience Certificate

Now, to the basic question: "Whether the relieved employee is entitled to the whole period of an experience certificate or not." Certainly, she is. She has been treated as on "maternity leave" for the period of absence. Even if it was not the case, if an employee has not been issued with any letter of discontinuance of service during her service period, the period of absence without pay would not amount to a break in service; thus, she is entitled to an experience certificate for the entire period for which she was employed with your organization. However, for the purpose of calculating the payment of Gratuity, the period of absence without pay is deducted from the entire period of service, and gratuity is payable for the remaining period.

Best wishes.

Regards,
AK Jain
HR Personnel
NCL, CIL

Issuance of Experience Certificate Despite Absence

From your question, it appears that the period of absence is yet to be regularized. When she reported after her absence, management did not issue a notice or a letter of discontinuance of service, and the employee also failed to seek approval for the regularization of her leave of absence by producing an appropriate medical certificate. Logically, and according to natural justice, the employee is eligible for an experience certificate for the total period of her service in your establishment. Regularization of absence is related to her service benefits and has nothing to do with the issuing of an experience certificate.

Of late, she has produced a medical certificate. Under Section 9 of the Maternity Benefit Act, 1961, "she is entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage."

Please recommend or arrange to issue an experience certificate and do not link the issue of experience with "the break-in period." Please go through the Act and take corrective steps to regularize her absence.

Regards,
SPKR

Gratuity Eligibility Clarification

Let it be clear: gratuity is payable for every completed year of service, and a completed year means a service of 240 days in a 12-month period. This is the case regardless of any breaks in between. In this instance, there was no break; hence, for gratuity calculation, the period of absence is also to be reckoned.

Regards,
KK

I endorse the view of Mr. K.K. Nair regarding the computation of gratuity. As the period of absence in the instant case cannot be treated as a break in service, the company cannot exclude the said period of absence from the computation of gratuity. Furthermore, the views expressed by learned members are based on prudent practices of administration and the laws governing such situations.

Regards,
B. Saikumar

Handling Sensitive HR Cases with Care

This is a case where, if not handled with care, HR will lose its face. From what is written by the HR team, I would first congratulate them for taking the female employee back. The female employee has taken things for granted; she did not submit her medical reports to date. It was an unspoken understanding between both parties as the issue was delicate and highly traumatic.

In my opinion, the employee should not insist on the experience letter for the period that she has not worked, and no company issues an experience certificate if you have worked for less than a year. Secondly, no company would have reappointed any employee who has not bothered to call the office during the period when she was not in the office.

One more lesson HR has to learn is to handle procedures while ensuring that employees who are going through a traumatic phase cooperate without feeling hurt.

Regards,
Karuna Jadhav

Entitlement to Experience Certificate for Employee on Extended Leave

The issue in question is very simple: whether the employee who was absent from duty for a long duration, had an abortion, and has been allowed to resume her duties despite the fact that there has been no application, whatsoever, from her to the above account, is entitled to an experience certificate or not.

The matter pertaining to her absence from duty, for whatever reason, stands condoned once she has been allowed to resume her duties. It is immaterial whether she stayed off duty, on leave without pay, or otherwise; the master and servant relationship has been continuing until she joins the other organization for better prospects. In such a situation, the question of denial of an experience certificate does not arise.

However, in the present issue, I will not dwell on the mishandling of the case on the part of the HR department.

Regards,
skjohri

The issue of the experience letter is not as simple as it sounds. This could set a precedent that may be utilized by any other employee in the future. The appropriate approach would be for the female employee to inform the new employer about the situation and request an experience letter from the time she re-joined the company. The HR did not mishandle the case; they have been very supportive. However, they did not document the case properly.

Regards,
Karuna Jadhav

Experience Letter and Maternity Benefits

I have seen all the comments in this thread. Frankly, the employee has been cornered and is at the receiving end. She must rightfully receive the experience letter for the continuous period. After considering all the prevalent rules, she must receive it. She was eligible for maternity benefits also.

Regards,
S. B. Panicker

HR's Error in Regularizing Maternity Leave

The HR department erred in not regularizing the so-called 'maternity leave' with due process. Now, after allowing her to leave, the discussion about past service or no service is being deliberated, which is yet another error. I believe a formal relieving letter has already been issued to her, and the full and final settlement, except for gratuity, has been made. Sympathy is one thing, and compliance with office procedures is another. I think HR shouldn't dwell on what has not been done at the right time. It's too late.

Regards

You have mentioned that the employer did not document the case properly. Therefore, it is not within his authority to deny the employee the experience certificate for the entire duration of her tenure. A person should not be allowed to benefit from their own mistakes.

Regards,
B. Saikumar

Much has been said about this strange posting. Though there are many discussions on maternity leave, employees not following proper procedures, etc., I feel that the essence of your request has been overlooked by many.

Please note that an "Experience Certificate" covers the period from the date of joining until the date of relief, and nothing else. If you feel that long spells of absence (regularized or not) should be excluded, it would not be ethical and proper, to say the least.

I want to ask you a simple question: There may be many cases where people would have overstayed for project requirements, toiling on many holidays, stretching working hours as a routine (I have stayed in the office continuously for 1 week owing to some project requirements; have continuously worked for 18 hours for months; been in the office till 03:00 AM and returned back at 07:00 AM, etc.). Will you include such "extra sittings" in the experience letter?

Please try not to make issues out of non-issues and adopt a simple approach while dealing.

Last, but not least, HR's major responsibility is to approach things with empathy and not read between the lines.

Regards.

I think there is no problem in issuing an experience certificate for the entire period to the lady employee, starting from 03-01-2008 to her date of resignation, i.e., 31-05-2013. The matter seems to be confused over the unnecessary use of the word "break." Factually, the lady initially remained absent on medical grounds from 15-09-2011 to 30-11-2011. There is no notice calling for an explanation or a decision to treat the absence as a break in service from the management. On the other hand, she was allowed to rejoin the service, indicating her absence was condoned.

In the experience certificate, we never mention the days of leave or days of absence of an employee, and truly, they should not be mentioned. So, what remains is the certificate of the entire period of service. I feel the company should not be overenthusiastic about such small matters.

As you have mentioned the date, she was attached to your organization for a longer period. I think you must give her an experience letter, or you can discuss it with your management.

Interesting that we have more than 25 comments on a subject that is actually a non-issue...  I wonder if any one of you has seen an experience letter that says employed from X till Y except on A, B, C, G, and H when they were on leave...  The seniors are absolutely right. If a person is getting paid or maintaining their unique IDs (be it ESI or PF or even the employee code), then the person will be considered "employed," and that is exactly what the experience letter must proclaim.

Interesting Facts

1. She was allowed 2.5 months leave without any attempt to find out why, how, where.
2. She did not contact, and hence neither did the organization... 
3. She is allowed to come back. No questions asked and no reasons required.
4. No documentation made or demanded for the same.
5. She continues for 1.5 years more, and still the HR/Admin don't realize her file is incomplete.
6. She resigns, and only then everyone is enlightened... 
7. And now everyone is fighting about whether 2.5 months should be included or not in the experience letter.

Wow!

Regards,
Navneet

Dear Seniors,

Thank you very much for all of your support and valuable responses. Actually, when all of this happened, I was not with this organization, and the previous HR did not take any action. Now, this case is in my hands, so before approaching management, I wanted to prepare myself by considering both the employee's and employer's possible viewpoints, hence this post.

Management's Concerns

Management is displeased with her irresponsible behavior, as she used to take sudden leaves frequently without any prior notice. Despite her loyalty towards female staff, bosses could not enforce strictness with her. The decision to rehire her was solely based on the unfortunate circumstances she faced. However, management is willing to provide her with gratuity and an experience letter. Nevertheless, her current approach towards us is highly unethical.

Please let me know if you have any further questions or need additional information.

Thank you.