Pregnant and Facing Job Termination: What Are My Rights and Options?

Hi, thank you all for the good work and advice. I am Swati and have been working with a software company in Noida for the past 6 years. I am currently 4 months pregnant. During my recent annual appraisal, I was formally informed that my performance had issues in the previous year, resulting in no increments or bonus. Subsequently, I became pregnant. Recently, my Senior Manager approached me and verbally mentioned that I might be terminated and should start looking for another job, claiming to do so as a well-wisher. Interestingly, I received positive verbal feedback on a call from my onshore boss in the presence of my Senior Manager last week. I requested my Senior Manager for more time until my delivery, after which I would resign on my own terms, but he is adamant that the decision has already been made by the management. If terminated, I would receive a 3-month notice period and salary for that period. This is the first negative feedback I have received in my 6 years with this organization. Despite verbal appreciation, my employer has not made any efforts to train me, provide counseling for my areas of improvement, or retain me.

I am extremely concerned about my job security, maternity benefits, and the impact of these circumstances on my child. I am puzzled as to why I am not being given a second chance despite my improved performance. There has been no formal communication or warning regarding my termination, only verbal advice from my Senior Manager to seek alternative employment. Given my current health complications, I am not in a position to actively search for a new job.

Could you please help me understand my rights in this situation as I am feeling very disturbed by all of this?

Should I consider going on unpaid leave until my delivery in November 2016 due to medical reasons as suggested by my gynecologist? However, I am unsure about the implications for my job and benefits. Please provide your advice on this matter.

Thank you and regards.

Dear Swati,

You have linked your pregnancy and underperformance. Nevertheless, the intimation of underperformance came before the disclosure of your pregnancy. Therefore, it is moot to what extent these two issues can be linked.

Addressing Underperformance

Have you been told the causes of underperformance? On what parameters is the performance measured? Do you have evidence to prove that you did not underperform per se? If you have underperformed, have you been placed under a Performance Improvement Plan (PIP)? If yes, what is the duration of the PIP? I recommend you apply for maternity leave at the end of the completion of the PIP. This will give you a margin of three months.

Other than your manager, has HR spoken to you about your exit from the company? What is HR's view? Is it that HR plays second fiddle and they have a role other than executing the orders?

Considering Your Options

If by chance you are told to quit the company on account of underperformance, then so be it. The reason of pregnancy may come in handy to cover up the underperformance. Once your child grows up, you may look for another job, and the reason for your exit can be your maternity issues.

Managing Worry and Stress

Lastly, about excessive worrying: These are not the times to worry about your job. You are not alone now. You are due to welcome a newcomer. Childbirth is a major event in anyone's life, and events of life cannot be given primacy over a career. Over-worrying could impact the healthy development of the fetus.

If you lose this job, you will get another one. For the six long years you have performed well, then it can be deduced that overall you are a good performer. I can understand what kind of heartburn you had when you got the news of underperformance. But then, top-notch cricketers also lose their form in the middle of a career, but they spring up, and I am sure that you will also spring back to your original self. Do not expect constant success in life. It is unfortunate that underperformance and pregnancy are in tandem, but then bumpy rides are there everywhere, and so is this bump. Pass the bump and let the journey go on!

All the best!

Regards, Dinesh Divekar

Protection Under the Maternity Benefits Act

Mr. Dinesh has given good advice. For the time being, you are protected by Section 12 of the Maternity Benefits Act:

12. Dismissal during absence or pregnancy. -- (1) Where 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:

Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

Please focus on the health of the baby and your well-being. Give formal notice of your medical condition and apply for authorized leave. You can take up the matter with HR and look for another job after your pregnancy and childbirth.

Regards

Understanding Your Rights During Maternity Leave

There are many companies that are cutting costs on maternity leave. In the past, leaves were 12 weeks, but presently, these leaves have been increased to 26 weeks, which means a total of 6 months.

If your management tells you that you are fired from this company, you have the right to demand this order (termination) in writing and should not submit a resignation. The company will pay you a significant amount on your full and final settlement, including gratuity, leave encashment, one month's notice pay, maternity leave (after a successful conciliation in a labor case if you win), and all month's salary from the date of termination to the end of the case if you are not employed by another company during this period.

You were formally informed that you are not performing, and therefore, increments and other benefits are not being given to you. You have also signed and accepted this. The incident of underperformance occurred before your pregnancy.

You are covered by maternity law, but only for 3 months, as the 26-week maternity law is yet to be passed. You will survive these 3 months, and the company will pay you, possibly due to the law. However, what happens after that? Do you believe the company will not decide to terminate you upon your return? Additionally, the improvement feedback received is verbal and cannot be proven.

Think long-term, consider your family, and only then make a decision. Initiating legal action and winning is one aspect, but will you be able to attend the case hearings in the challenging condition you are currently facing?

Regards,
Ashutosh Thakre

Yes, I have accepted my underperformance at the time of annual appraisals this year. However, why, when, and what led to it is a different story. No, they have not put me under a Performance Improvement Plan (PIP) yet, but I am feeling pressured and tense due to my Senior Manager approaching me frequently and suggesting I find another job. He is advising me to prepare for job interviews at the workplace or reach out to him to discuss anything related to finding a new job. All of this has created complexities for me. I am uncertain whether I should continue going to the office or take the leave as suggested by my gynecologist. Additionally, I am unsure how to find a new job under these circumstances as advised by my Senior Manager.

I have full respect for their decision, but had the situation been normal, I would have accepted it gracefully. However, now my circumstances are different, and I feel like I have no other option. I am also concerned that if I speak up, I might face challenges in finding a new job after my pregnancy, as a potential employer might seek feedback from my current company.

To be very honest, I hold no grudges against anyone and simply aim to secure the benefits I deserve and nothing more. I am uncertain if I will receive anything beyond my three months' notice pay if I follow my gynecologist's advice and take medical leave starting tomorrow due to my pregnancy. I feel uncomfortable when my Senior Manager repeatedly advises me to seek new job opportunities.

This is a small company with its head office in Italy and the UK. However, it seems that everyone is in agreement, and no one is concerned about my well-being. Though they have an HR department, it seems more symbolic than functional. Any discussions I have with them will likely be shared with my Senior Manager first, so I am unsure of the appropriate course of action in this situation.

I have not received any formal letter thus far, but I fear that one day they may prevent me from entering the premises and ask me to leave immediately, even though I have done nothing wrong.

Thank you once again for your advice.

Regards, Swati

Understanding Your Rights During Pregnancy

Informal or verbal notice or instruction from your Senior Manager holds no value. You cannot be compelled to carry out such instructions.

As they are unable to assign you strenuous work during your pregnancy within one month before six weeks of your expected delivery date, leading to maternity leave, and are also restricted from terminating you during pregnancy, except in cases of disciplinary action due to misconduct, it appears they are attempting to exert mental pressure on you to resign from the company voluntarily. This would allow them to avoid paying the maternity benefits rightfully owed to you and potentially cause complications for the company.

You have been duly informed of the legal position regarding your situation. However, it seems that you have not formally notified management of your pregnancy, although they may be aware of it informally. Therefore, it is advisable for you to take proactive steps. If you have not submitted Form B to notify them of your pregnancy, it is imperative to do so promptly to prevent ongoing mental harassment and tension caused by your manager. Your formal notice will specify the date on which you will be absent from work, not earlier than six weeks before your expected delivery date. If your manager continues to pressure you to resign, politely request a formal termination notice instead. The company cannot force you to resign against your will.

Please let us know if you need any further assistance.

Sincerely

Pregnancy and Job Security Concerns

My wife is working in an online furniture company here in Bangalore, India. She is 3 months pregnant now. Her company is asking her to resign. They put her on a PIP (Performance Improvement Plan), which was withdrawn after they found out she is pregnant. They have terminated many of her colleagues (from different teams) by giving them PIP as their salaries were on the higher side. There is no performance issue; she has been working there for the past two years.

Now, she was also informed that her salary is on the higher side, and they want to hire a new resource with a lower salary, so they are asking her to resign. If she resigns, they will provide 3 months' compensation. Since she has just completed the first trimester of her pregnancy, she cannot seek employment anywhere for the next 11 to 12 months.

Any advice?

Thanks,
Ranbir
[Phone Number Removed For Privacy-Reasons]

Forcing an employee to resign is an offense. The employee can lodge a complaint. The onus of providing evidence is on the employee. Employees should record such transactions (audio/visual) and keep witnesses for use at the appropriate time in the appropriate forum. A forced resignation may be deemed a termination.

She can send an email to the Manager regarding the query and cc HR. Then, she should wait for a reply to have something for reference.

No employer has the right to terminate an employee when she is pregnant or on maternity leave. Has she received any warning letters? Typically, a company will issue 1-3 warning letters to employees.

Hi All,

I am an HR professional working in an IT firm in Bangalore. I joined the current company in June and informed my employer about my pregnancy two weeks after joining. Things were going well, and my manager had discussed providing a proper handover before I went on maternity leave. However, just one day before my maternity leave was due to begin, my employer terminated me, even though I am currently in the 9th month of my pregnancy.

Please advise.

Thanks in advance.