Can an Employer Include Notice Period in Maternity Leave? Seeking Legal Insights and Advice

Seeking Advice on Maternity Leave and Notice Period

I have a case involving one of my employees and I am seeking your views on the matter along with the applicable Act.

One of our employees is on Maternity Leave (90 days), and it has only been a month since she started her leave. The employer wants her to leave despite her notice period being 2 months, and they intend to include her two months' notice in the Maternity Leave period.

I kindly request you to share your views along with references to the applicable Acts. If the employer proceeds with this action, what penalties and consequences will be applicable to them? Furthermore, what should the employee do if the employer enforces this decision against her will?

Thanks & Regards

Main Cause Behind Firing During Maternity Leave

What is the main cause behind firing? As per my knowledge, neither can an employer fire an employee nor can they impose any type of penalties or change in work conditions while she is on maternity leave.

Dear Citemember/Seniors, if I am wrong at any place, please rectify me.

Thanks & Regards

Imran is correct - you cannot fire someone who is on Maternity Leave. There are serious consequences to this action.

Understanding the Maternity Benefit Act

Explain to your employer the rules of the Maternity Benefit Act, along with case studies where wrongful termination at this time is taken seriously by labor authorities.

Temporary Staffing Solution

Take his approval to hire one temporary staff for 2-3 months so that some work can be managed.

Regards,

Clarification on Maternity Leave Duration and Legal Implications

First of all, the Maternity Leave is 84 days and not 90 days. With regards to firing the employee during the Maternity Period, it is totally illegal and unlawful, apart from cases of gross misconduct. The penalty or consequences for the employer depend on the employee's complaint to the Labor Office, a Civil Suit, or any other mode as directed by her lawyer.

Dear Nitin, Considering that she has actually worked in an establishment for not less than 80 days in the 12 months immediately preceding the date of her expected delivery, the employer can face the following penalty if she registers her case.

Penalties Under The Maternity Benefit Act - 1961

As per The Maternity Benefit Act - 1961, if any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such a woman during or on account of her absence from work in accordance with the provisions of this Act, the employer shall be punishable with imprisonment which shall not be less than three (03) months but which may extend to one (01) year and with a fine which shall not be less than Rs. 2000/-, which may extend to Rs. 5000/-.

Regards,

Dear Nitin,

You have mentioned that the employee has put in only one month of service prior to proceeding on Maternity Leave (ML).

Eligibility for Maternity Leave

First of all, please note that an employee has to put in at least 160 days of attendance in the preceding year (earlier it was 80 days). Therefore, it appears that the female employee is not entitled to ML at present. Additionally, if she was pregnant at the time of joining, she should have informed about this fact during the joining process to avail leave (other than ML).

Legal Implications of Termination

Secondly, regarding the removal from service, no employer can dismiss any female employee on such frivolous grounds. There are provisions for penalties in such cases if the employee seeks legal protection. It would be inhumane to dismiss a female employee who requires more attention and sympathy rather than apathy.

Please try to persuade your higher management that terminating the service of the female employee could result in legal complications. I am confident that your advice will be given due consideration, and alternative solutions will be explored.

Best wishes,

AK Jain

HR Personnel.

Can you please let us know from where you have taken this 160 days attendance clause, because as per section 5(2) of MB Act it's 80 days and for women migrated from Assam, this 80 days condition is also not applicable. I have also not encountered any recent amendment in the above provision of the MB Act.

Thank you for correcting me. In fact, the figures got reversed; earlier, it was 160 days, which has been amended to 80 days.

Maternity Benefit Act Update

The qualifying period of service for the entitlement of maternity benefit under the Act has been reduced from 160 days to 80 days of actual work in the preceding twelve months. Ref: http://labourbureau.nic.in/Report_WOTMBAct_2010.pdf

I am again grateful for your cautious reading. The error was unintentional, and it is regretted.

Regards,
AK Jain
HR Personnel.