Pregnant and Pressured: Can My Wife Be Forced to Resign for Alleged Misconduct?

Dear Members,

My wife is 3 months pregnant, and she has been asked to resign from her company where she has been working for the past 16 months. She is being literally forced to resign, with the threat that if she doesn't resign, they will terminate her. They are citing non-performance and irregular attendance as the reasons for forcing her resignation. They issued her a letter (hard copy, not via email) some 3 weeks ago, on the same day she emailed HR informing them of her pregnancy and requesting flexibility in reporting time due to medical reasons.

Performance and Attendance Concerns

Regarding non-performance, my wife was confirmed in June 2017 and has been performing well in the work assigned to her. As for leaves, yes, she has taken more leaves than a normal employee, but most of the leaves were approved, with the remaining being leave without pay. Additionally, the late coming was never approved by her boss and resulted in half-day leaves on most occasions in the past 2 months. Can this be considered misconduct?

Seeking Advice

Please advise if she can be terminated on grounds of misconduct and non-performance. Should she resign to avoid a pink slip? There has been no email asking her to resign, nor any performance improvement warning, except for the letter issued 15 days ago citing the two aforementioned reasons.

Dear friend, the fact that your wife is pregnant at the time she is asked by her employer to resign on the pretext of underperformance makes the situation really precarious and complicated. Since the pregnancy is in its early stage of three months, I presume that the fact would not have been conveyed to the employer officially. However, the frequency of her approved leave and the late attendance during the last two months, as stated in the post, might have prompted the employer to take a cue about her pregnancy.

Maternity Benefit Act, 1961

As per the latest amendment to the Maternity Benefit Act, 1961 effective from 01-04-2017, the maximum period of maternity benefit stands increased to 26 weeks, of which not more than 8 weeks should precede the expected date of delivery. Therefore, in order to avoid this, the employer has taken such a hasty and faulty decision of getting rid of her services on the ground of underperformance, that too very soon after her confirmation in June 2017.

Of course, sec. 12(1) of the MB Act, 1961 prohibits the discharge or dismissal of a pregnant employee only during her absence from work any time during the 26 weeks. But ss (2)(a) of sec. 12 mandates that such discharge or dismissal during any time of her pregnancy should not deprive her of the maternity benefit or medical bonus. Perhaps, this legal position would have escaped the attention of the employer, and hence the compulsion of her resignation or threat of dismissal on the sudden ground of underperformance as a preemptive measure. The emerging position, therefore, is the employer has to give her maternity benefit and medical bonus even if she is dismissed on the ground of misconduct, provided the fact of pregnancy should have been intimated to him formally.

Suggestions

Hence, my suggestions in the order of priority are:
(1) Let your wife communicate the fact of her pregnancy to her employer immediately with a medical certificate.
(2) Let her not accept the proposal of resignation at any cost.
(3) Boldly face the disciplinary proceedings, if any, taken otherwise.

Deciding on Pregnancy and Employment

You and your wife need to decide whether you want to have a baby. If yes, please ask your wife to inform her employer immediately about her pregnancy along with all the necessary medical documents (Pathology test, Ultrasound, or Sonography test Report), referencing the date and time of the earlier email sent in this regard. Do not make a hasty decision or give in to any demands for resignation. Your position will be compromised if the employer manages to obtain the resignation. Pregnancy is the only protection that can prevent any adverse actions.

Addressing Allegations of Misconduct

You should also acknowledge that there are grounds supporting allegations of misconduct against your wife due to her irregular attendance and habitual tardiness, resulting in poor performance. Advise your wife to obtain a copy of the company's standing orders, which she should be familiar with as an employee. The management is unlikely to overlook these issues and will proceed as outlined. It is crucial for you to now challenge the ongoing proceedings. Consider seeking advice from a consultant to navigate this situation effectively.

Dear Kavita, if the employee truly has issues warranting stern disciplinary action, the employee's pregnancy cannot be a barrier. However, what is important to analyze is whether her pregnancy and the disciplinary action against her for some serious lapses on her part are just coincidental or a mere tactical and exploitative ploy adopted by the employer to deny her statutory maternity benefits. That's why sec. 12 of the MB Act imposes certain restrictions on the right of the employer to terminate a pregnant woman employee.