Is My Wife's Company Using a PIP to Dodge Maternity Leave? Seeking Advice on Next Steps

Hello, a few days ago, my wife informed her HR that she is pregnant and requested some work-related concessions due to the stress and travel involved in her job. Instead of offering support, HR, after consulting with her manager, issued a PIP stating that her performance had been below company expectations for the past 5 months. However, she had actually achieved more targets than other employees, and many others who had performed worse were not issued PIPs.

In her opinion, she feels that everything is being orchestrated so that the company can avoid the financial responsibility of paying for 6 months of no work and other benefits outlined in the maternity act.

Please advise on how she should proceed from this point onwards. Feel free to ask for more details about the situation if needed.

Thank you so much.

Provisions of Maternity Benefits Act

4. Employment of, or work by, women prohibited during certain periods.

(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.

(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the fetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.

(4) The period referred to in sub-section (3) shall be:
(a) the period of one month immediately preceding the period of six weeks before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

Suggest officially intimating the company about pregnancy and enclosing a medical certificate in writing, duly acknowledged by the company. Let it not be a verbal intimation. Once this intimation is given and acknowledged, the company will have to follow the welfare act—Maternity Benefits Act 1961.

Thank you, Mr. Nathrao, but she has already given written intimation to her HR regarding her pregnancy. Just 2-3 days after giving the intimation, the HR team issued a PIP to her, stating the last 5 months of underperformance. As she is already more than 2 months pregnant, it is very obvious that her performance can be affected due to this. However, after knowing this fact, issuing a PIP so that they can get rid of the employee and save the burden of giving benefits under the maternity act seems totally unlawful. Please suggest what steps we should take from here on.

Are you sure a PIP is a step to find out ways to ask her to quit? If so, consult a local lawyer who deals with such issues and take his advice.

Response from the Company's Head HR

Below is the exact email received from the company's head HR to her when she wrote about her pregnancy and asked for some concessions in work, as her job involves a lot of traveling and stress. Please suggest if consulting a lawyer is now the step that we need to take or if there are other ways as well.

“Dear Pooja,

First of all, hearty congratulations on entering a new phase of life. I do understand this is the time when you have to take utmost care of yourself and should avoid doing stressful, travel-related jobs.

Since all our backend operations and sitting jobs are handled from the Pune Head Office, we only have sales jobs at other locations, including Delhi. Also, we don’t have any work-from-home option. Regarding the PIP process, it’s a defined process and can’t be altered on a condition-to-condition basis. One needs to perform and come out of PIP, else follows an auto-termination process.

I have already spoken to you in this regard. What I would recommend is, in the current scenario, it’s better you give full attention to your health and resign from the job. In the future, whenever you find yourself fit and comfortable to go on a field job, you can apply at Purnartha again. We would be more than happy to have you on board.

Aside, Prashant, please help Pooja in smooth relieving and would request to waive off her notice period on her resignation.

Pooja, if you need any help or assistance, do let us know.”

Dear Pooja, the contents of the letter issued to you are ridiculous. I recommend that you find out the labor office under whose jurisdiction your company falls. You can very well file a complaint with the labor office for the denial of maternity leave. Please note that the Labor Officer (LO) is different from a labor lawyer. The former is appointed by the government, whereas the latter is a professional who works individually and typically charges a fee.

When you approach the Labor Officer, make sure to bring your company's ID card, appointment letter, and most importantly, a printout of the email you received from HR.

Additionally, please note that the decision of the Labor Officer is not necessarily binding on either party. However, very few employers have the nerve to go against the decision of the Labor Officer as their decisions are generally favorable to employees.

Thanks,
Dinesh Divekar

Thank you very much, Mr. Dinesh, for your kind response, but the fact is she is not eligible to take maternity leave as of now since she is about three months pregnant and still has to wait another three months to apply for maternity leave. The issue is that after receiving notification of her pregnancy, the organization is creating a situation to make her resign voluntarily, as is clear from their email. If we don’t take action at this stage, they will succeed in their plan to avoid giving maternity benefits. My wife just wants her organization to be a little lenient with her regarding targets, nature of work, etc.

Now, please suggest what would be the right thing to do for us.

Why are employees placed under the Performance Improvement Plan (PIP)?

Employees are placed under PIP to give underperforming employees a chance to improve their performance. It acts as a warning to the employee about the potential consequences if they do not enhance their performance. During PIP, the reporting manager or Head of Department (HOD) is expected to invest time in the underperforming employee to help elevate their performance.

Illegal use of PIP in your wife's case

In your wife's case, the disclosure of her pregnancy has become the cause of the PIP, which is illegal. Her organization is using PIP as a tool to target a female employee. Therefore, there is nothing wrong with approaching the Labour Officer (LO) for the withdrawal of the PIP letter.

Considerations under the Industrial Dispute Act, 1947

By the way, how many employees report to your wife? Under the provisions of the Industrial Dispute Act, 1947, only "workmen" can approach the LO. Those who are supervisors and above cannot approach the LO. However, your wife's case is different, and the denial of maternity benefits certainly falls within the LO's jurisdiction.

In your wife's case, it is not a direct denial of maternity benefits but an implied denial. Therefore, I stand by my recommendation to approach the LO. In her application, let her state that the disclosure of her maternity has become the reason for the letter issued to her.

Steps before approaching the Labour Officer

Nevertheless, before approaching the LO, she may submit an application addressed to the Managing Director (MD) for the withdrawal of the PIP. If the MD remains unresponsive, then the only option left will be to approach the LO.

General comments for the HR fraternity

The way HR has issued a letter to the employee speaks volumes about that HR professional. The person appears confused and may not understand the concepts of the PIP, including the possibility of termination. On one hand, HR aims to engage their employees, but on the other hand, they also work to disengage them. When a female employee is denied maternity benefits, it can create sympathy among other employees and impact overall employee morale.

Thanks,

Dinesh Divekar

Thank you so much, Mr. Dinesh, for the valuable information. A few new MT joiners are under my wife's supervision, but they don’t report directly to her. However, as you mentioned, even if they did report to her, she could approach the LO since the case is entirely different. As my wife told me yesterday, her manager is harassing her verbally by discussing her performance over the last 2-3 months, despite knowing what she has been through during that time. She feels stressed by this, and her morale is declining. It seems like their strategy might be to make her resign by using these indirect practices, which appear illegal to me. However, we want to observe their behavior for a few more days to gain more clarity about their intentions so that we can plan our next step. Please correct me if my thoughts are wrong. Thank you.

Mr. Anupam,

FYI, a pregnant woman cannot be fired from a company. It is a punishable offense and shall result in imprisonment for a maximum of 3 years (Maternity Benefit Act, 1961).

Thank you.