Can a Company Legally Dismiss a Pregnant Employee for Non-Performance? Seeking Advice

Respected seniors, please let me know immediately, can a pregnant employee be removed from the job because of absolute non-performance? Please let me know the legal perspective, and how can the company defend itself in such a condition. First of all, the employee had defrauded the company without revealing that she is pregnant.

Regards,
Deepthi

Pregnancy and non-performance are absolutely two unconnected issues. Has the non-performance been proved? Were the warning letters issued for non-performance? Has the enquiry been conducted before termination? Did the employee communicate to the HR Department about her pregnancy? If yes, then when and how was it communicated? There are so many questions associated with your post. Please provide further information.

Thanks,

Dinesh Divekar

She joined the organization in September, and her delivery due date is in April. This itself indicates that she did not disclose her pregnancy at the time of joining. Her non-performance was evidenced by emails and was also communicated to her via emails. She has not been terminated yet, but she has mentioned that she will go to court for her defense.

Apart from what Mr. Dinesh has mentioned, not revealing pregnancy by an employee cannot be termed as fraud, and that cannot be the reason for the denial of Maternity Benefits if it is so.

Understanding the Maternity Benefit Act, 1961

Firstly, please refer to Section 5(2) of the Maternity Benefit Act, 1961. No woman is 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 160 days in twelve months. You mentioned she joined in April. (I fail to understand why it took you so long to take action against her and waited for such a long period).

Evidently, she is eligible for the Maternity Benefit Act.

Dismissal During Pregnancy

Also, please refer to Section 12, Subsection 2(a) for dismissal during absence or pregnancy. The termination of such a woman at any time during the pregnancy, the woman is entitled to maternity benefit or medical bonus referred to in Section 8 of the Maternity Benefit Act, 1961, and shall not have the effect of depriving her of the maternity benefit or medical bonus.

In simple words, the Act forbids you to dismiss a pregnant woman during her pregnancy period. Even if you dismiss her citing professional reasons (under Section 12, 2(a)), she is still entitled to the benefits under the act.

Pregnancy is not at all the reason. She is a proven non-performer. We were initially also ready to give maternity leave, but she is now trying to use her situation.

Sir, ours is a proprietor concern. Do you still think all the above rules apply?

I have gone through the revised act amendments of 2008, and I find no substantial changes except for the medical bonus. Please correct me with relevant changes with sections as applicable. For the moment, I presume I have read and understood the act well.

Even if her joining date is in September, I presume she has completed more than 160 days. This will not change the picture. Any woman working on a permanent, probationary, or contractual basis will end up benefiting from the Maternity Act.

To sum it all up, the employee will be getting all the benefits under the Maternity Act.

My company's point is that she is a non-performer. Why should she benefit when her actions caused the company to incur a $50,000 loss, which was proven on paper?

Clarification on Employee Termination

First, please clarify: was it fraud or non-performance? Further, was non-performance amounting to a negative impact/loss of customers or just less efficiency? The answers, to some extent, would be influenced by that.

In general, she has worked more than 80 days before the delivery date and is entitled to maternity benefits. As per the act, you cannot terminate her until the end of her pregnancy. So, you are stuck with her. You can terminate her only in April.

She is smart and probably planned this. You guys are taken for suckers, so now you don't have an option but to pay her salary and maternity benefits under the act.

You can put her on compulsory paid leave until delivery if you feel her presence is detrimental to the working of the company.

The real issue here is the non-performance of the employee. Incidentally, the employee happens to be a pregnant woman. Deepthi's befuddlement is more because of the payment of pregnancy benefits to a non-performer rather than the root cause of the problem.

Root Cause of the Problem

The root cause of the problem is improper recruitment. Will this job candidate give the required performance? This is the million-dollar question. Why did the interviewer(s) fail to uncover the poor performer within her?

So far, the whole discussion has revolved around the payment of maternity benefits under the provisions of the relevant law. Legal provisions aside, now is the time to think from a management science point of view as well. Deepthi needs to reveal the woman employee's designation, qualifications, how the selection was done, and what kind of tests were taken to assess the suitability of the candidate, etc.

Case Study: Amazon's Recruitment Process

Recently, Amazon selected a woman employee at a very senior level. She is the daughter-in-law of our family friend. She informed me that the recruitment process consisted of 10 rounds. Out of these 10 rounds, two were hardcore technical rounds where her skills were thoroughly tested.

Despite having over 10 years of experience, including eight years in a top-notch IT company, Amazon did not solely rely on it. They also did not consider her qualification from IIM, Bangalore. They proceeded with their stringent recruitment process.

Importance of Training Managers

Deepthi's post sheds light on the importance of training managers on "Interview Handling Skills." Many companies prefer to incur losses due to poor recruitment rather than investing in managerial training. Is Deepthi's company one of these? She would know best!

Thanks,

Dinesh Divekar

Deepthi, as per your thread, she is a non-performer and the company has incurred a loss of Rs. 50,000. What steps were initiated from your end? Please let the forum know.

In this case, when you are aware that the lady is pregnant, you cannot remove her from her service. On medical grounds, she will get relaxation in duties. While she is on maternity leave, even at that point in time, you will have to sanction her leave until she is fit to rejoin the office, whether it is paid or unpaid.

Thank you.

You can terminate her on the basis of non-performance, but you must have all the necessary proof to substantiate this decision. This includes warning letters, email copies, performance records, etc. However, termination should not be based on her pregnancy.

Saswata Banerjee is right on point. Even regarding your contention about her 'fraud' [not informing that she's pregnant], I think you are on very thin ice, both legally and logically. If she joined in September 2014 and her delivery is due in April 2015, then she can always claim that she didn't know about it when she joined. She would have conceived 1-2 months earlier and can take the stand that she got the pregnancy tests done after joining.

Consulting an Advocate

I suggest consulting an advocate and checking if the documentation you have regarding her non-performance is valid and sufficient legally [you mentioned a loss of 50K, etc.]. If yes, then I suggest going the whole hog and handling her legally. However, keep in mind that she seems to have geared up legally too, and to the extent I know about how courts deal with such matters, she will tend to have more sympathy and benefit of the doubt.

Regards,
TS

My point is a little practical. If management doesn't want an employee or vice versa, then it is not healthy to continue with the employee, as it doesn't work in favor of both parties.

February has ended now. Her maternity is due in April, so she will only be coming for one more month. Additionally, she will take maternity leave one or two weeks before her due date.

Let her go on maternity leave. After that, you may have grounds for separation.

I always prefer to keep issues away from courts and the law. Neither party is going to benefit.

Thank you.

You should have asked her to submit medical certificates before joining. I wonder why your company doesn't have such policies. Actually, in your case, pregnancy is not a matter at all. If any employee's performance is not good, then the organization has all rights to terminate their job. However, you have to warn them before the termination. As you mentioned earlier, a warning has already been given to the employee, so you can terminate her. To avoid these kinds of cases, ask the new joiners to submit a medical certificate.

Regards

[QUOTE=saswatabanerjee;2211988]

Clarification Needed: Fraud or Non-Performance?

First, please clarify: was it fraud or non-performance? Further, was non-performance amounting to a negative impact/loss of customers or just less efficiency? The answers, to some extent, would be influenced by that.

Maternity Benefits and Termination

In general, she has worked more than 80 days before the delivery date and is entitled to maternity benefits. As per the act, you cannot terminate her until the end of her pregnancy. So, you are stuck with her. You can terminate her only in April.

She is smart and probably planned this. You guys are taken for suckers, so now you don't have an option but to pay her salary and maternity benefits under the act.

Questioning Intent and Evidence

I am surprised at the assertion that the lady in question was someone who came with an intent to defraud. The first line clearly indicates you have no knowledge about the circumstances. Unfortunately, the third line is a judgment without having a shred of evidence.

Being pregnant is not a crime by itself unless the role requires her to do something that can harm the baby. I don't think any woman is required to declare it, which is certainly very patronizing and downright discriminating, to say the very least.

HR Perspective on Employee Growth

I am pretty surprised at how an HR forum is ready to quote laws to restrain but doesn’t dwell on theories to grow their employees. If a job requires her to sit and respond to emails or make a few phone calls, then a simple provision of a laptop and Internet connection will resolve the issue. The company will earn a loyal employee. Unfortunately, no amount of recruitment processes designed by IIT/IIM/Harvard can buy a loyal employee from the market.

Having faith in people is often the most overstated theory in HRD. From what I have read so far, there is no evidence being provided to justify the claim that she has defrauded the company, apart from the fact she didn’t declare she was pregnant. To my mind, that isn’t fraud by any stretch of the imagination. Otherwise, let me know what the fraud is with evidence rather than a rhetorical statement.

My, my! What a response! I wonder where you did your HR training from. There is not enough detail in the mail to give us a clear and complete understanding of the circumstances. I am happy to be accused of not knowing the circumstances (it's not my company, I don't work there) than to give half-baked feedback and suggestions without finding out the actual details.

Companies run businesses, not charities. It makes no sense for them to employ someone who is going to be on paid leave a few months after joining, or who will need to be given restricted work (it's specified in the act, by the way) and be given the full salary. They would be willing to do that for someone who has worked there for a reasonable amount of time, not for someone who has just joined and will probably take full advantage of the law on maternity leave and then not bother to come back to work after her full level of benefit is exhausted. If the circumstances were different, the original query would not even have been asked. Anyway, the response of the employee in question shows clearly what type of person she is. The later posts also state that she stopped working seriously after her pregnancy was confirmed. There is nothing to say that her performance gap is due to illness or pregnancy-related stress.

I am glad you were able to enlighten us that the job only requires her to make phone calls and send emails. The original post does not say so. So I assume there was some information that was communicated to you directly?

[QUOTE=Sajr2;2212815]

Dear learned members, The last post that Deepthi gave was on 25-Feb-2015. Thereafter, she has gone incommunicado. As the originator, she should have participated occasionally and provided clarifications. Therefore, there is no point in squabbling among the respondents. We are expressing our views in the interest of Deepthi, but if she is not interested, then why waste our time and energy typing the replies? My reply to her has also gone unanswered. Let us concentrate on other threads where needy members are waiting for responses from seniors.

Since the thread has taken a very different turn, I deem it fit to close the thread.

Thanks,
Dinesh Divekar

Please treat her with respect. Other people in the organization are watching you. There is no such thing as a "Non-Performer"; no one leaves home to spend 9 hours in the office "not to perform." Give her tasks she embraces, engage her, and be positive with her. She will respond.

Let's say, Deepthi, you are in the same situation. What would you want your employer to do with you? Do that.

Realizing Non-Performance

When did you realize that she is a non-performer?

Termination During Pregnancy

Termination during the pregnancy period is difficult as it would contravene labor laws. Termination needs to be done after due processes only. Hurried termination would land you in labor court.

Legal Protection for Pregnant Employees

As per the Maternity Act, no woman employee can be removed on the basis of pregnancy or for any reason during the pregnancy period. If this occurs, it is not valid in law. You can file a case against the employer for violating the Act and a criminal case for humiliating behavior during the pregnancy period by terminating her employment on the grounds of unsatisfactory work.

Regards,
D. Gurumurthy