Facing Unfair Maternity Leave Policies: What Legal Steps Can I Take to Protect Myself?

I work with an MNC in Bangalore, and my six-month paid maternity leave expired in the first week of December 2018. My request for an extension of leave without pay was denied, and the option to work from home has also been denied by HR. I have been presented with only two options: report to work or resign. The employer does not have a creche facility as per the Maternity Benefit (Amendment) Act 2017, and hence reporting to work with my child is not an option. Resignation by paying three months' gross salary (the notice period is three months) also seems illegal because when employees are forced to leave by the company or terminated, they are given basic pay only and not other components of salary.

Violation of Company Policies

Most importantly, the project of the company on which I work will be returned to the client. It appears HR would want me to leave the company so that they do not have to look for another job as well as profit from three months' gross pay. Prima facie, the company is violating several rules like:

01. Not having a creche facility.
02. Not extending leave without pay.
03. Not providing a work-from-home option.
04. Asking for gross salary for the notice period.

Seeking Legal Advice

I wanted to know how I can enforce and safeguard myself from the unethical and illegal practices of the company. What legal options are available for a working woman?

1) How many employees are in the factory/establishment? Section 11A of the Maternity Benefits Act (amendment) states that 50 or more employees are required.

2) Extending leave without pay is purely discretionary. It cannot be claimed as a matter of right.

3) Again, it is discretionary.

4) What does your offer letter say about notice pay? Please examine all points in a holistic fashion. The Maternity Benefits Act is for the benefit of women, but the company cannot and will not go beyond the scope of the act.

So far governments haven't made rules for creche under the MB Act. If you are suffering from sickness arising out of delivery, you are entitled to 30 days of paid leave under the Act, provided you have not availed 30 days of sick leave during pregnancy under the Act. Otherwise, it is at the discretion of the employer.

Work from home is also at the discretion of the employer.

Varghese Mathew

Tvm. 9961266966

Maternity Leave Discrepancies

@Nathrao - With over 10,000 employees in the organization, I have worked for 13 months of continuous service at the time of availing maternity leave. The offer letter states 3 months' pay but is silent about Gross vs. Basic. This is where the illegality takes place. When employees are terminated or asked to leave, only 3 months of Basic is given. However, if employees wish to leave on their own accord, 3 months of Gross Pay is demanded.

Maternity Act Compliance

@Varghese Mathew - I am surprised at this point. The Maternity Act clearly stipulates Creche facilities, and it has been widely covered in the news. The Act clearly states that it is mandatory.

I did not say that creche is not mandatory under MB Act. I only said that appropriate governments have not made any rules for creche. Instead, the Ministry of Women and Child Welfare has issued guidelines on it, not rules. There is a difference between an Act and rules, like POG Act and the central/state rules under it.

Maternity Act and Creche Facility Requirements

Section 11A, introduced by the Maternity Act, states that any establishment with 50 or more employees must provide a creche facility. The Maternity Act does not specify the details or procedures for establishing or maintaining a creche in an establishment. Consequently, the Social Security Division of the Ministry of Labour and Employment issued a circular dated November 17, 2018, requesting State governments to formulate and notify rules outlining the amenities and facilities necessary in a creche.

If your organization does not have a creche, you have a valid reason to refuse to report to duty. Therefore, you should now counteroffer by stating that, since there is no creche available, you are unable to come to work unless they increase your salary from XX amount to XXX amount. This increase would compensate for the loss of income you experience due to the absence of a creche, as mandated by law. Alternatively, you can tender your resignation without further dispute, provided they issue a relieving letter, an experience certificate, and three months' salary.

Thank you,
Octavious