Illegal Termination of pregnant women - terminated from a company on the last day of her 3 months probation period

My wife was terminated from a company on the last day of her 3-month probation period (30th Sept). The company gave her two weeks' notice (as per her contract), and her last day at work was 11th Oct. The company mentioned the reason as her not completing 9 hours on a daily and continuous basis. She was terminated despite no red flags being raised on her performance.

According to our analysis of the time data shared with us by the company (as part of her termination letter), she was just short by 25 minutes on average per day over 50 days. Additionally, the data provided could have been manipulated by the company. Thus, we feel that the reason given is not strong enough to justify her termination. Also, this reason was not mentioned in her contract (offer letter attached) as a potential cause for termination, and she never received any written warnings for falling short. Hence, we suspect that the real (hidden) reason for her termination was her pregnancy.

It is important to note that the company has paid her September month's salary and her full and final settlement amount.

We have already sent a legal notice to the company, to which they haven't responded. What are our other options?

Whether the fact of the employee's pregnancy was officially intimated to the employer?

Dear colleagues,

It is often observed that the poster doesn't give adequate background data of the query, which results in wasting time seeking basic information, as Mr. Umakanthan had to do. If the querist provides basic information like their company being a factory or commercial establishment, their role as a workman, supervisor, or manager, the number of employees employed, and communication to the employer regarding maternity or pregnancy, it will help a lot in providing timely advice or opinion. Every querist needs to follow this discipline.

Regards,
Vinayak Nagarkar
HR Consultant

Hi,

Pardon my ignorance of what is required to rightfully answer the queries. Please find the below answers:

a. Whether the fact of the employee's pregnancy was officially intimated to the employer?
- My wife officially told about her pregnancy to the company around 08th August 2019, after she joined back office from sick leave. A medical certificate submitted in lieu of sick leave dated 06th August 2019, mentions that my wife is 12 weeks pregnant at that point.

b. Company is a factory or commercial establishment.
I think it is a commercial establishment. The company is a foreign company incorporated on 21 August 2013, and its country of incorporation is Hong Kong. In India, they have a small office in Gurgaon.

c. He/she is working as a workman, supervisor, or manager.
My wife was working as a Junior MI Analyst with them. I believe out of the 3 categories, she will be classified as a workman.

d. How many employees are employed?
In India, they have close to 50 employees.

Dear colleague,

This is a clear case of the breach of the provisions of the Maternity Benefit Act/Rules, and her termination during a known pregnancy is blatantly illegal.

You are to represent to the top decision authority of the company, giving full facts of the case culminating in illegal termination, demanding your reinstatement in the service and the grant of maternity leave as per the rules when she is entitled to it later.

You should also mention that if your request is not acceded to, you will have no option but to take appropriate legal action against the company.

Regards,

Vinayak Nagarkar, HR Consultant

There is no breach of the MB Act. As per Section 15 of the Act, termination is prohibited only when the woman is absent from work in accordance with the provisions of the Act.

In the given facts, there is nothing to infer a violation of the Act.

I think that the opinion of Mr. Varghese is correct. In view of section 12(2)(a) of the Maternity Benefit Act, 1961, the employer can terminate the services of a woman at any time during her pregnancy if such termination will not deprive the woman of the maternity benefit and medical bonus. Let the poster ensure this with the employer. If the poster questions the discharge, he can advise his wife to raise an industrial dispute under section 2-A(1) of the ID Act, 1947, before the Conciliation Officer for the area.

Sorry, I quoted sec 15, but it is sec 12.

With three months of service, I don't know how far she can succeed under the ID Act.

She can claim reinstatement with back wages and continuity of service.

Termination during probation is justified as per the terms of appointment, and confirmation of job is the prerogative of the employer.

However, termination of an employee due to pregnancy is illegal. According to the Maternity Benefit Act, one can claim maternity benefits by fulfilling the following criteria:

- The employee should have worked for her employer for at least 80 days in the last 12 months.
- The employee can request her employer to assign her light work to avail maternity benefits.
- Such a request should be made at least 10 weeks before her expected delivery date.
- The employee should produce a certificate confirming her pregnancy to the employer 10 weeks before her delivery date.
- The employee needs to give written notice to the employer at least 7 weeks before her delivery date regarding her absence period.

It is evident from the post ("My wife officially informed the company about her pregnancy around 8th August 2019, after she joined back the office from sick leave. A medical certificate submitted in place of sick leave dated 6th August 2019, states that my wife was 12 weeks pregnant at that point") that the employee conceived prior to her employment and falls under non-disclosure or concealing of facts.

Which provision in the Maternity Benefits Act prohibits the termination of pregnant women when she is not absenting as per the Act?

Thanks for all your inputs.

I have been reading a lot about the Maternity Benefits Act lately, and below are my findings:

a. Even a woman on probation is entitled to maternity benefits.
b. The company has the right to terminate the employment duties of a pregnant woman when she is under probation.
c. Section 12(2)(a) of the Maternity Benefits Act infers that a woman on probation who is terminated by her employer during her pregnancy is eligible for maternity benefits, provided that she had worked in the establishment for at least 80 days (including paid holidays, paid weekends, and any laid-off days) in the last 12 months from the date of her expected delivery.