Navigating Employee Performance Issues Amidst Maternity Leave: What Would You Do?

X company hired a female employee on 15th April 2020. After a month, the company started facing issues with her performance. The company decided to give her verbal warnings instead of direct termination or any strict action. However, there seemed to be no improvement until August 2020.

Issuing a Performance Improvement Plan (PIP)

Meanwhile, the management and HR decided to issue her a PIP with 30 days' notice. Before this could be done, she informed the company about her two-month pregnancy and her plans for maternity leave. Her clear intention was to avoid termination on the grounds of maternity benefits and rules.

Management's Dilemma

The management team was confused about whether to terminate her. If they proceeded, she could file a case claiming that the termination was due to her maternity benefits. If they didn't, she would be an additional burden to the company for the next 15 months (9 months of pregnancy + 6 months of leave).

Company's Decision and Employee's Reaction

On humanitarian grounds, the company decided to give her another chance by sending an email stating the performance dissatisfaction and the need for improvement ASAP, without mentioning termination. She then took advantage of this email by spreading a verbal message among other employees that she was being harassed mentally during her critical days of pregnancy. Please suggest what the appropriate action should be for such situations.

Chronological Events Calendar

1. April 2020: Joining
2. May 2020: Performance issue, verbal notice
3. August 2020: No improvement, so in September 2020, the employer decided to issue a PIP. However, the employee updated the clause of Maternity with 2 months. In April, May, and June (3 months of employment, i.e., eligibility confirmed under the maternity act), and in September, she informs that 2 months mean as per your records, the expected date is in March.

4. According to your given inputs, she is already on maternity leave, so where is the performance issue right now?

Basically, her profile is a target-based profile. Performance issues have been present since the beginning, but on humanitarian grounds, the company didn't want to take any strict action like termination. Therefore, they wanted her to improve through verbal and written warnings. However, when the company began losing its patience due to business losses, they became strict. She took advantage of her situation to avoid termination and even started spreading false accusations that management was mentally harassing her.

The primary concern is whether the company can terminate her based on performance during her pregnancy period, especially since she is not showing any signs of improvement.

Please let me know if you have any questions or need further clarification.

Addressing Employee Non-Compliance

There are multiple issues as per your post. If the employee is recruited for a target-based job and the employee did not comply with the employment terms, the establishment can form a disciplinary committee to address the situation and make an appropriate decision.

Every document, such as targets, non-compliance issues, and others, should be presented to the committee. The employee should be given a fair hearing by the committee before any conclusions are drawn.

Mere verbal allegations should not be made without proper authorization, especially regarding the misuse of maternity benefits by any employee.

Legal Considerations for Termination During Maternity

WFH is by default already given. My only concern is, if the company asks her to leave by giving proper notice and salary as applicable, will it be fine from a legal perspective? The reason being, she is not performing as per the expectations, and because of her maternity case, the company cannot pressurize for any small thing as well. Secondly, an allegation about the misuse of maternity benefits is observed based on the reaction the company received from other employees. Please assist on this point as well.

Please confirm whether the concerned woman employee is on maternity leave or if the leave period is already over.

Dear Swati,

Admittedly, when her profile is target-based and although she was found to have performance issues right from her appointment in April 2020, the management decided to put her on PIP in September 2020 only. By that time, the employee also officially informed about her being pregnant for 2 months in September 2020. Why can't it be a sheer coincidence? As such, her probable expected date of delivery could be some day in March 2021 only. If so, she cannot proceed on maternity leave earlier than 8 weeks from the EDD. At times, organizational gossip and politics can be greater than the organization and its problems. Therefore, gossips and hearsays cannot become acceptable circumstantial evidence in disciplinary matters.

Since she was hired on 15th April 2020 only, she should be a probationer, and you would have an exit clause in the contract of employment to do away with her services at any time during probation if her performance is not satisfactory. Why did you fail to invoke this clause until September 2020 when you knew within a span of a month that she was an underperformer? Have you documented her performance history? Your post is completely silent about such relevant details but hinges only on gossips culminating in the irresistible decision of sending her out so as to deprive her of statutory maternity benefits. Sorry, you cannot do so as of now in view of the provisions of Section 4 and Section 12 of the Maternity Benefit Act, 1961.