Maternity - legal for the company to terminate her when she is pregnant?

My wife was working in a Private Ltd tuition classes for the past 3 years. She is a permanent employee. The company is not deducting PF nor ESI. She is 6 months pregnant now. In the last week of January, out of the blue, her boss came and said she does not have to come from February. Even without giving a one-month notice period, which is suggested in the contract, her boss terminated my wife from her job. Also, she advised her to submit a backdated resignation letter, which she refused to do, and asked her boss to issue a termination letter. However, it's been 2 weeks now, and they have not provided the termination letter yet.

I wanted to know if it is legal for the company to terminate her when she is pregnant. Is the company liable to pay maternity benefits? Does the MBA Act of 1961 come into place as the company doesn't deduct ESI? Also, please suggest if we are entitled to maternity benefits and one month's salary as they didn't issue a notice period.

Did the employee inform the employer about the pregnancy?
The actions of the employer are incorrect.
Advise the employee to file a complaint with the Labour Commissioner in the area, providing all the relevant details of the case.
The non-deduction of ESIC and PF does not impact the entitlement to Maternity Benefits. Non-deduction of PF is also considered an offense.

Hello Nathrao,

An employee had advised her employer regarding her pregnancy, and her employer had told her she could leave and re-join anytime she wants. The employee had also informed her employer that she would work until March 2018, but in January, her employer said not to come from February. I believe she was terminated as the employer knew they would have to provide maternity benefits.

The company has more than 20 employees, and out of that, only 9 are permanent. Is it because of this that the company is not deducting PF and ESI? I was indeed going to complain to the labor commissioner. Can we schedule an appointment with the commissioner directly, or do we need to go through an advocate?

Dear Friend Anish,

It's very wise that she did not give a backdated resignation but instead asked the employer to issue a termination letter, and I think they will not dare to do so. I suggest you inform the employer that, due to a specific reason (unable to join duty, accompanied by a doctor's certificate stating she's pregnant), she will be on leave and will only resume duty after (as per MB). Keep the conversation in writing, especially through email, as proof.

Under Section 12 of the M.B. Act, 1961, it is emphasized that any dismissal or discharge of a woman during pregnancy is unlawful, and such employers can be punished under Section 21 of the Act. Furthermore, I suggest filing a written complaint with the Labour Commissioner of the respective region against the employer along with valid proof.

Please refer to the Q&A below:

Q: How can a woman employee claim her maternity benefit?
A: A woman employed in an establishment and entitled to maternity benefits under this Act must give written notice to her employer stating her claim for maternity benefits. The amount she may be entitled to under the Act can be paid to her or her nominee. The pregnant woman must state the date from which she will be absent from work, which cannot be earlier than six weeks from the expected delivery date. If the woman did not give notice during pregnancy, she may do so as soon as possible after delivery. Upon receipt of the notice, the employer must permit the woman to be absent from work during the period for which she receives maternity benefits.

Q: What is the provision relating to the prohibition of dismissal for a woman employee during absence due to pregnancy?
A: It is unlawful for an employer to discharge or dismiss a woman who is absent from work in accordance with the Maternity Benefit Act. A notice of discharge or dismissal that would disadvantage the woman in terms of her conditions of service is also unlawful. Dismissal or discharge is permissible only in cases of prescribed gross misconduct, for which the employer must inform the woman in writing that she will be deprived of maternity benefits, medical bonus, or both. The woman, if notified within sixty days of such an order, can appeal to the prescribed authority. The decision of that authority on the appeal will be final.

Q: What are the provisions for punishment or penalty for an employer who contravenes these laws?
A: An employer who fails to pay any maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work as per this Act shall be punishable with imprisonment up to 1 year, a fine up to Rs. 5000, or both.

Hope this information is helpful for you.

If the matter is not resolved by the company immediately and MB benefits are not paid, directly approach the Labour Commissioner with full details of the case, including employment details and contract copy. There is no need for an advocate presently.

Dear colleague,

Please check first whether the institution she worked at is registered under the Maharashtra Shops and Establishment Act/Rules. If yes, the Maternity Benefit Act applies since there are more than 10 persons employed.

Please follow the procedure given in the Q.A above regarding intimating the employer regarding maternity along with the doctor's certificates as required. Do not resign or accept a termination letter. Let her inform the employer also that she is proceeding on maternity leave 8 weeks prior to the due date of delivery and the remaining 18 weeks after delivery.

The employer will dare not take action of termination when informed of your pregnancy/maternity leave in writing, and if he does, the law is completely on your side and there is nothing to worry about. Please revert to this forum for further advice if and when the employer takes further action.

Regards, Vinayak Nagarkar HR Consultant

If the employee is permanent, it obviously means she is entitled to all the benefits like PF/ESIC/gratuity/leave with wages/national holidays/maternity leave benefits/weekly offs/overtime benefits, etc.

However, in this case, if the employer simply cannot terminate the employee without an appropriate reason to do so, also an appropriate notice period should be served. It is important to note that if the employee has intimated the employer well in advance about the pregnancy and asked for leave under the maternity benefits grounds, then the employer cannot ask for resignation from the employee just because she is pregnant and the employer is looking to escape from granting maternity benefits.

However, it is suggested that the employee should have enough evidence to prove she is a permanent employee before approaching the concerned labor authority. Seek advice from the labor office or a lawyer for further action.

Dear professional colleague,

To be eligible for Maternity benefit under the M.B. Act, the following conditions are required to be fulfilled:

1. The M.B. Act should be applicable to the establishment.
2. The woman employee in such establishment should have worked for 80 days prior to the expected date of delivery.
3. If the above is fulfilled, no condition of being permanent or otherwise is required.
4. The woman employee who is eligible for M.B. cannot be terminated by an employer during pregnancy, which is outright illegal.

Regards,
Vinayak Nagarkar
HR Consultant

Dear Vinayak,

Thank you for your valuable reply. How can I determine whether the institution is registered under the Maharashtra Shops and Establishment Act? It was initially established as a tuition center which later transformed into a private limited company. The name also indicates ______ Classes Pvt Ltd.

Please advise on how to determine if the MB Act applies to the institution. The employer has reduced its permanent employees to less than 10, and I suspect it is because she does not want to provide PF and other ESI benefits.

Businesses registered under Shops and Establishment Acts are supposed to display their registration certificate prominently in the office. If an employer has fewer than 10 employees, they may be exempt from both the PF net and MB net. Employers resort to such tactics as these social security enactments create a financial burden for them. In such cases, it can be challenging to legally prove and challenge the company.

Hello Nathrao Sir,

I agree with what you say. However, in the contract, there is a clause that states a one-month notice period is required from either side before terminating employment. The employer, however, has not given any notice period and asked the employee not to come to the office starting a week after. In this case, I believe it is a breach of contract. Even if the MB Act and PF are not applicable, this clause should still be applicable. The employer has not issued a termination letter, and the employee has not submitted a resignation letter; instead, the employee was advised to submit a backdated resignation letter. According to the contract, the employer is liable to pay a month's salary, right? Is there any legal validity in this case? So, would it be better to claim this rather than relying on the MB, which, according to your opinion, could be a tactic used by employers?

Breach of contract is a civil offense, and civil cases take time. Employers are taking advantage of the delays in justice. If an employee has to give one month's notice, the employer also has to give one month's notice or pay before terminating the services of the employee. From what you said about the notice period, you have a case to fight. Whether it is practical to fight is another question. So, think of all angles before any action is taken.

Dear colleague,

The question being asked is whether the M.B. Act continues to apply after the strength has fallen below 10. The answer is yes, it applies. Whether the institution is registered under the Shops Act or not, you can check in the office of the Municipal Corp. Office dealing with registration. I suggest you have a strong case for getting benefits under the M.B. Act and under the terms of the appointment/contract letter. I suggest you send a legal notice drafted by a competent Labour Lawyer demanding M.B. benefits after briefing him on all the facts of the case revealed in your post.

Regards,
Vinayak Nagarkar
HR Consultant

In the Philippines, it is unlawful to terminate a pregnant female employee. There are 5 just causes for terminating the employer-employee relationship, which are:

1) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

2) Gross and habitual neglect by the employee of his duties

3) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

4) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

5) Other causes analogous to the foregoing. Remember, the burden of proof is always on the employer's end.

Yes, your boss deserves punishments. Removal of a temporary or permanent employee during pregnancy to avoid providing free leave pay for maternity shows the cruelty and unfair labor practices of that selfish individual. You should bring this matter to the local labor department or court. Therefore, you are advised to file a complaint at the local labor office and provide all the details during a joint meeting. Rest assured, the job will be protected, and the order for removal cannot be enforced. Your boss has no right to remove or compel resignation. If these actions are proven, they could lead to imprisonment as well. It's likely that the foolish boss will realize the consequences of their actions in due course.

Finally, I have submitted an online complaint on the website of the Department of Labour. I have also emailed the employer informing them that we will be proceeding legally. In response to that, the employer has sent a letter from their advocate twisting the incident, now claiming that the employee did not inform before leaving the organization and that this action had a negative impact on the institution's reputation. I am attaching the document that the employer has sent. Additionally, I would like to know if we can directly approach the labour commissioner. I believe the employer became nervous upon receiving the email that was sent to them.

Mr. Anish,

You need to seek advice from a lawyer and provide a proper reply based on the facts from your side.

Lawyers often aim to sound legal and intimidate the opposing party. Therefore, it is advisable to approach the Labour Commissioner with the issues at hand.

Handle matters with a calm demeanor as your health is of utmost importance during this period. It is important to note that the law is supportive of pregnant women.

Take the necessary legal actions to safeguard your interests.

Thank you.