Is It Legal to Replace an Employee Returning from Maternity Leave with a New Hire?

Dear seniors,

I need your valuable advice. One of our employees is on maternity leave (we have provided her with maternity benefits under ESIC), and we have appointed a new person on a contract basis to fill her absence. Now, we are considering appointing the new person on a permanent basis in place of the employee on maternity leave.

I would like to know if it is legally permissible to terminate the services of the employee once she returns to the office after her maternity leave by giving her a 30-day notice or salary in lieu of notice.

Advice to Read the Maternity Benefits Act 1961

Extract for info:

Dismissal During Absence of Pregnancy

12. Dismissal during absence of pregnancy. - (1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence or to vary to her disadvantage any of the conditions of her service.

(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus.

Now, the intention to terminate the employee by giving 30 days' notice/salary in lieu of notice may be legal, but the ethics of such action need to be considered.

- Is the lady not working satisfactorily?
- Has she been warned/counselled in writing or even verbally before, and if so, what is the result thereof?

One must not treat employees as a disposable commodity.

Glenn,

I completely agree with Mr. Nathrao - it is illegal to do so. Please advise your management that there are legal repercussions if you proceed down this path.

Regards,