Can We Ask an Employee to Resign After Extended Maternity Leave? Seeking Advice

Hi, I have a female employee who has taken her second maternity leave with us in a period of three years and has extended it by another three months of unpaid leave. However, we have hired new people in the team, and the position is not available for her to return to after her maternity leave. We would like her to resign and move on. Can we ask her to resign or terminate her? We have paid her three months' gross salary as per compliance during her notice period, and after that, she has taken three months of unpaid leave. Please advise.

There is no correlation between the number of maternity breaks and a time period. Secondly, you cannot link the present maternity leave with the past maternity leave.

Occasionally, complications arise during maternity, and therefore, women seek an extension of their maternity leave. When a woman is ready to forego her monthly salary, it shows the gravity of the situation.

To maintain the continuity of the work, you have taken on her replacement. Now you wish to dispense with the woman employee. However, whether to dispense the original employee or her replacement, this decision depends on the nature of the work, her designation, the performance of the employee who proceeded on the leave, etc. If the woman employee is in the worker category, then things are a little easier. Finding a job for workers is not much of a problem.

If you replace the employee, it will send a signal to all the employees that retention of the employee is not very important for the company. As an HR professional, we talk a lot about "Employee Engagement." However, engagement goes beyond just playing some games on the company premises. This type of decision might mentally disengage an employee. Hopefully, you can find out the cost of the mental disengagement vis-a-vis the revenue saved because of the removal of the employee.

Thanks,

Dinesh Divekar

Relevant Sections of Law Regarding Maternity Leave

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.

(b) Any woman deprived of maternity benefit or medical bonus or both may, within sixty days from the date on which the order of such deprivation is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefits or medical bonus or both, shall be final.

(c) Nothing contained in this sub-section shall affect the provisions contained in subsection (1).

13. No Deduction of Wages in Certain Cases
No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of:
(a) the nature of work assigned to her by virtue of the provisions contained in subsection (3) of section 4; or
(b) breaks for nursing the child allowed to her under the provisions of section 11.

"I have a female employee who has taken her second maternity break with us in a period of 3 years and has extended her maternity break by another 3 months of unpaid leave."

Taking a second maternity break is not unauthorized.
Questions to Consider
- On what grounds was the extension of maternity leave granted?
- Was any medical certificate provided?
- Is the leave paid or unpaid?

When you talk about the three-month additional leave, please read:

10. Leave for Illness Arising Out of Pregnancy, Delivery, Premature Birth of Child, or Miscarriage
A woman suffering from illness arising out of pregnancy, delivery, premature birth of a child, or miscarriage shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

So, take a careful decision. Asking her to leave or forcing her to resign needs careful consideration about legality.

Regards

Advice on Employee Resignation or Termination

Your Query: Can we ask her to resign or terminate her? We have paid her 3 months' gross salary as per compliance during her notice period, and post that, she has availed 3 months of unpaid leave. Please advise.

Advice/Clarification

Resignation is voluntary and should never be sought; otherwise, it amounts to an unlawful or forceful act on the part of the employer or management. Hence, desist from even thinking along those lines.

Secondly, on what grounds are you, the employer or management, pondering over terminating her from employment or the muster roll? Is it because the concerned female employee availed maternity leave or facilities she is legally entitled to avail? What notice period are you referring to? Has she furnished a notice to be relieved from her duty or employment, or has the management insisted on it (influenced, instructed, instigated, or in any other manner whatsoever to give notice not of her own will)?

It is pertinent and expedient for you to thoroughly familiarize yourself with the provisions of the Maternity Act 1961 with subsequent amendments before taking any action.

Team Kritarth is, as always, available.

Regards, Team Kritarth

Challenges of Managing Maternity Leave

Do you know how difficult it is to manage a baby even after 3 months? Ask all the married women. You indicated that you have paid the wages as part of compliance, which only indicates that if it were not a compliance issue, your organization probably would not have willingly paid for the same.

Secondly, since you have now taken on new team members, it seems there is no position for this employee who has gone on maternity leave. Was this inclusion of team members intentional? What if there are other female staff who would want to go on maternity leave and might want to extend it due to extenuating reasons? Will they feel safe to proceed on leave, knowing there might always be a fear in their mind about having a job when they return from leave? What is the impact on staff when they view this? Please make a conscious decision before termination.

Retention vs. Termination

Termination is always easy; retention is most difficult. If you are able to retain staff, then you are practicing good HR ethics.

Regards

Dear,

Maternity leave is a statutory leave which has legal binding. In case of certain medical issues, it may need to be extended. Termination on this ground alone is not valid. It is important to review the penal clause of the relevant act.

You may counsel her and negotiate a settlement for separation, but terminating her services is not permissible. It would have been advisable to hire a temporary replacement, considering her eventual return.

Anurag Lakhotia
www.lexlabour.com

If you terminate her services, it will be illegal. Let her rejoin whenever she desires. However, if the leave from the conveyed expected date of confinement exceeds, say, four months without any medical certificate, you can write a mild letter mentioning that absence beyond the maximum limit of leave under the act may be treated as unauthorized. Depending on the response, take further actions. Please be careful of the legal implications of the decision you make.