How to Handle a Resignation During Maternity Leave When Notice Period is 90 Days?

Dear Superiors & Friends, this is to notify you that I need a solution for an issue I am facing in relieving a special case employee. She is on maternity leave from September 16th, 2020, to March 16th, 2021, but she submitted her resignation on February 11th, stating that she needs to be relieved at the earliest.

What should I do? As per the company policy, the notice period is 90 days. We paid her salary until January. It's an IT Company.

Employee Resignation During Maternity Leave

The noteworthy point here is that it is the employee who wants/insists on leaving in the middle of her maternity leave, whereas the employer is still prepared to pay her salary until the end of her leave. Thus, when the separation during her maternity leave is at her instance only, after it takes place, the question of payment of salary beyond the date of separation does not arise.

Notice Period Fulfillment

However, in this scenario, the fulfillment of the notice condition to make her exit effective from the date of her choice is a separate issue to be decided strictly as per the terms of the contract of employment. Legally, she has to buy out the notice period of 90 days, while the employer has to pay her leave salary up to the date of her relief.

I am assuming that all the policies related to maternity leave and exit are in place. Here, the employee herself is requesting to be relieved from her duties before her maternity leave ends. Hence, we cannot force her to stay as she may have personal reasons post-maternity.

Looking at the notice period clause of 90 days, she will be required to either serve the same (WFH) or forfeit it, as the company has followed all the rules in terms of supporting her during maternity, and she is also expected to reciprocate. As you have mentioned, the company has already paid for 4 months out of 6 months, she is now required to pay for 1 month as the other 2 months from the notice period could be adjusted from the maternity leave.

Maternity Leave and Resignation Case

The woman employee is on maternity leave from 16/09/20 to 16/03/21 (six months), and the company paid her salary up to January 2021. However, on 11th February 2021, she submitted her resignation request.

As per the company policy, employees are required to provide a 90-day notice period for separation. This condition also applies to the woman employee in question. Therefore, the period from 11/02 to 16/03/21 (around 34 days) could be adjusted against her maternity leave. For the remaining 56 days, she will either need to return to work at the office or reimburse the company for the salary paid during this period due to her separation request.

I would request M/S Ekta and R.K. Nair to substantiate their contention that the employee on maternity leave is to be paid the whole maternity benefit despite her resignation in the middle of the leave.

I do agree with Umakanthan, sir. As the employee resigns in the middle of her maternity leave, the date of commencement of maternity leave up to the date of acceptance of the resignation letter needs to be considered as maternity leave. In her case, from 16/09/20 to 11/2/21 (presuming 11/2 is the date of receipt of the resignation letter) shall be her maternity leave, even though the company had already approved maternity leave from 16/09/20 to 16/3/21. Due to her prevailing condition, she will not be able to work during the notice period, although she is bound to give notice. Hence, the only alternative left for her is to buy out the notice period.

Employee Benefits and Notice Period

The employee can avail of a benefit under the statute from the employer as long as the employer-employee relationship exists.

In this case, the employee has to pay in lieu of notice (buy out 90 days) for her separation from the services. Inform the employee that her last working day would be 17/03/2021. Her payment under MB for the month of February to March 16 will be adjusted against the notice period, and she needs to pay for the rest of the period. Do not fall prey to the employee; allow her to exit after the MB leave exhausts. By doing so, you would comply in a hassle-free manner and would not fall under violation. It is the prerogative of the employer to decide the date.