Is It Legal for My Employer to Terminate Me During Pregnancy After Probation? Seeking Advice on Maternity Benefits

I have been working for a private IT company for the past 6 months. After 1 month of joining, I conceived and informed my HR. I have now completed my probation period, i.e., 6 months, but they haven't confirmed my position yet, citing performance issues. I am planning to go on maternity leave next month. Can you please let me know if it is legal for them to terminate me now? Also, can I avail myself of my maternity benefits?

Request you to please help me with this.

Maternity Leave and Employment Protection

When a female employee officially informs her employer about her pregnancy, it is unlawful for the employer to terminate her employment for any reason during her pregnancy as per Section 12(2)(a) of the Maternity Benefit Act, 1961. Such an action by the employer cannot deny her the maternity benefits entitled to her under the Act.

Therefore, the employee can choose to take maternity leave, provided that it does not commence earlier than 8 weeks before the expected delivery date.

Maternity Benefits Eligibility

As per Section 5(2) of The Maternity Benefits Act, every woman employee who has worked in the establishment for at least 80 days in the 12 months preceding the expected delivery date is entitled to receive maternity benefits. In your case, since you have already worked for 6 months before the date of delivery, you are indeed entitled to maternity benefits, even if you are under probation.

Protection Against Termination

Also, as per Section 12 of The Maternity Benefits Act, it is unlawful for the employer to discharge or dismiss a woman employee during her maternity leave period.

Eligibility and Entitlements Under the MB Act

Your eligibility and entitlements under the MB Act have been clarified by the learned colleagues. You are still in employment and fear that the company may terminate your services, which has not yet happened.

Protection Under the Act

The Act prohibits the termination of eligible women employees while they are availing the benefits under it with due intimation. While your confirmation is still not done, you can proceed on MB leave by following the proper procedure.

There is no cause of action yet. Revert to this forum if the action, as feared by you, is taken by the company, which will be bound to be illegal.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

Maternity Benefits Eligibility

Your employer may argue that you are not eligible to claim maternity benefits because your pregnancy occurred before completing 80 days of work, which is a technical requirement.

You can take leave, but this period may be treated as an absence. As you fear, the company might ask you to resign for this reason or take any action they deem appropriate. It would be better to stay calm during this period for a safe delivery, without letting your mind wander elsewhere.

I don't believe the MB Act disqualifies a female employee from receiving benefits if she becomes pregnant within 30 days of joining. The eligibility for benefits under the Act stipulates that the female employee should have worked for at least 80 days during the preceding 12 months. The employee in question has fulfilled this prerequisite, and it is hoped that the employer understands their obligation.

Regards, Vinayak Nagarkar
HR and Employee Relations Consultant

Sorry, Prabhatji, the employer cannot take such a defense to deny the poster her statutory maternity benefits. If the provisions of Section 5(2) of the Maternity Benefit Act, 1961, are carefully analyzed, the reference date for determining the number of days of minimum qualifying completed service of 80 days by the woman is only the date of her expected delivery and not the date of her joining. It is also immaterial whether she was pregnant on the date of her joining.

That apart, the fact of the matter is that the poster is still in service as a probationer. Therefore, she can go on maternity leave subject to the condition I mentioned earlier. Even if the employer dismisses her abruptly, such a dismissal, being illegal, cannot deprive her of the maternity benefits.