Balancing Compassion and Business Needs: How to Handle Employee Absences During Pregnancy?

Hi, we are a small business with fewer than 7 employees, and we are currently in urgent need of hiring in the IT department. We recently onboarded a candidate with 6 years of experience and a salary package of 4.5 LPA, which we offered 11 LPA for remote work. This individual was hired for a senior position due to an upcoming project that requires senior expertise. Her first day was on August 25, and today is September 27. Within this short period, she has already taken 5 sick leaves out of 7 sick days and 15 vacation days.

After requesting more sick leave this week, she disclosed to us that she is pregnant, which was unexpected given the short duration of her employment. She mentioned struggling with depression and anxiety due to her pregnancy, indicating potential difficulty in maintaining regular work hours. Our company allows flexible work hours for all employees, even before knowing about her pregnancy.

Considering the critical project that necessitated her hiring, her frequent absences have begun to impact our operations significantly. While we understand and support her pregnancy, her current health condition raises concerns about her ability to meet the senior supervisory role's demands as initially discussed during the hiring process.

We are hesitant to terminate her employment based on her pregnancy, but we are also concerned about our business requirements not being met. Can you provide guidance on how we can handle this situation effectively while balancing legal and ethical considerations? Thank you for your assistance.

Dear member,

You have employed the woman employee on 25-Aug-2021. Therefore, hardly a month has passed. Have you issued her the appointment letter? You say that she is on probation. In that case, when will her probation period be completed? Have you included the separation clause in the appointment letter, and if yes, what are the conditions if the employee is on probation?

The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?

You have the following options:

a) Talk to her and find out the condition of her health. Since she is suffering due to depression and anxiety, on medical grounds, ask her to put up a letter of resignation.

b) The second option is to serve her a show-cause notice on account of poor performance. If the reply is not satisfactory, then you can terminate her services.

Conditions of Maternity Benefit Act, 1961 (with an amendment in 2017):

Maternity benefit in India is mainly governed by the Maternity Benefit Act, 1961, which applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees' State Insurance Act, 1948. Since you do not employ 10 or more employees, the act does not apply to your company.

Secondly, the same act provides that a woman will be paid maternity benefit at the rate of her average daily wage in the three months preceding her maternity leave. However, the woman needs to have worked for the employer for at least 80 days in the 12 months preceding the date of her expected delivery.

Since the woman employee has not completed 80 days of her employment, the provisions of the said Act do not apply to her.

To know more about these conditions, you may click the following link:

https://www.livemint.com/money/perso...655754106.html

If you wish to download a copy of the Act, then you may click the following link:

https://www.citehr.com/581449-matern...tive-date.html

So hurry up! You can very well close the case this week itself. Do not drag it any further.

Thanks,

Dinesh Divekar

Dear Mr. Dinesh,

Thank you for sharing your valuable knowledge with me. The employee was issued an appointment letter with the clause: "On affirmative acceptance of this offer, a separate Probationary Appointment Letter shall be issued to you for this position. Your probation period shall be 8 months. After probation, you shall be issued a confirmation appointment letter. During probation, the company reserves the right to terminate the employment without any notice if your performance is not deemed satisfactory. In case the employee wants to leave the company during the probation period, he/she is required to give one month's prior notice to the management." Now that I see the documents sent to the employee for signature have been signed, I forgot to attach the separate probationary appointment letter as mentioned in the clause. The separate probationary letter basically reiterated everything in the offer letter.

Can I provide her a separate probationary letter now, saying that as mentioned in the offer letter, I am issuing her a separate probationary letter that I forgot to attach previously? Although the conditions of probationary separation are clearly mentioned in the offer letter.

The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you? No. The employee took 5 sick leaves out of 7 for the year before August 20, i.e., within the first month of her joining. Only yesterday, when she needed more leaves, she called her reporting manager to verbally inform that she has a doctor appointment tomorrow for her pregnancy and that she is pregnant. She may or may not work the day before her appointment since lately she is depressed and anxious.

I agree that during the interview, we did not ask her personal questions like if she is family planning because we did not think about it, but now it seems like she only joined us because we are a small business with work-from-home options and flexible hours.

Frequent absence and misuse of flexible hours, i.e., working at 5 a.m. when the entire team is not working, is not appropriate. Her position requires her to update business analysts and communicate, join meetings, and work with other employees. She cannot work at, say, midnight and say she is pregnant and depressed, so we should allow that. Can she do that?

I was looking to train her for 2-3 months and then ask her to supervise and train juniors, but clearly, she will not be able to fulfill that given her health. I am a very small business owner, and I don't have enough team to compensate for her work or hire another employee and pay her too.

Can I terminate or ask her to resign if her performance is affected?

Termination Considerations for Senior-Level Employees

This employee, being in a senior-level position, will not receive protection under labor laws. However, when you prepared the appointment order (a separate probation letter is not required), you made a mistake by including a sentence stating that her services may be terminated during probation without notice or reason. If you have mentioned that termination may occur due to poor performance, then you must provide her with an opportunity to be heard and, of course, a chance to improve her performance. This process will take time. While you may have quantifiable results regarding her performance, they will not suffice if you terminate her on the grounds of poor performance. A termination based on poor performance is stigmatic and could be challenged on the basis that she was not given a chance to defend herself. Assessing an employee's potential in just one month is very challenging.

Recommended Approach

The best course of action now is to have an open discussion with the employee. Clearly communicate your expectations from her, the reasons she was offered the position, and the current situation. You can explain that she was primarily hired to manage the project in the pipeline, and if she expects more time off or flexible hours, it may not be feasible to retain her. Ultimately, you can ask her to resign. Under normal circumstances, she will likely agree.

Hello, Further to what Dinesh Divekar and Madhu have suggested, I recommend focusing on her depression and anxiety issues rather than her pregnancy. You could ask her to submit her resignation citing these reasons instead of terminating her. That is always a safer approach. Many employees become more productive once they have addressed their health issues. This lady might claim that the company terminated her unfairly once she overcomes this phase of life.

Compassion vs. Logical Thinking

Regarding your statement, "I do not want to be mean and cruel," there are situations that require compassion and situations that call for logical thinking. It is crucial not to mix up these approaches as it can lead to improper actions. If this lady had been transparent in August 2021, perhaps she would have deserved some empathy and a compassionate approach.

Considerations for Her Pregnancy

You have not specified which month of her term she is currently in. If she was more than one month pregnant in August, there is a chance that she was aware of her pregnancy when you offered her the job, especially if the critical nature of the position was explained. In such cases, it is essential to proceed with necessary actions while considering legal implications, as suggested by Dinesh and Madhu.

Recruitment and Interview Strategies

Start the recruitment process for a replacement immediately. When interviewing female candidates, consider including questions about their family background, marital status, or plans for children. I have had all my employees working from home since 2016, unlike the rest of the world in the past year. I always make an effort to understand their family situations as it can impact their work, whether it involves pregnancy or other family issues like relationships with spouses or in-laws.

All the best.

Regards, TS

I have noticed that, Umakanthan.

Scenario of Hiring in the IT Sector

The most probable scenario seems to be: the company is in Canada and has hired an Indian working from home in India—please see the references to salary figures in LPA. Such hiring is pretty common in the IT sector.

Focus on Human Nature and Response

Notwithstanding the above, my focus was on the human nature and response perspective—there are many better experts in CiteHR to suggest on the legality issues than me. And I guess human nature would be by and large the same all over the globe, with minor differences based on the local culture.

Best regards,
TS

Thank you, TS, for correcting my mistake.

Employment Conditions and Labor Laws

Whatever the hierarchical position of employment, an employee is an employee only, and the conditions of employment cannot be anti-humanitarian or inconsiderate just because he or she happens to be out of the purview of labor law. That's why certain labor laws like the Maternity Benefit Act, 1961, and the Payment of Gratuity Act, 1972 apply to all paid employees alike. At the same time, when the performance of the employee is not conducive to the purpose of his/her appointment, the hardships faced by the employer cannot be simply brushed aside on humanitarian grounds alone, and the employer cannot be found at fault if he tries for a decent and peaceful separation in a win-win atmosphere as suggested by all the learned people.

Discharge Simpliciter Clause

As rightly observed by Mr. Madhu, the discharge simpliciter clause in the contract of employment shall not be couched in language indicating a stigmatic connotation to the termination. This is the ratio decidendi of the Apex Court in several judgments, including the recent one in 2020, viz., Vijayakumaran.C.P.V v Central University of Kerala. Furthermore, now that the employer is aware that the employee is pregnant and her frequent sickness due to pregnancy would be a continual interruption to carrying out her job even while working from home (WFH). At this stage, it would be unlawful to terminate her services as per sec.12 (1) of the MB Act, 1961, even after a formal inquiry, and her maternity benefits cannot be normally deprived of as per the provisions of sec. 12(2)(a) if the Act is applicable to the establishment.

Negotiation and Maternity Benefits

Therefore, it is better to initiate an open negotiation with her to resign with the employer's assurance of payment of her maternity benefits later and a waiver of the notice condition.

Hello Mr. Tajsateesh,

I am reading the comments and different acts and rules honorable members have suggested. The second comment on the post is mine elaborating on the topic further.

In case I confront the employee to submit resignation papers, since within the first week of joining they took three sick leaves followed by two more in the next week, none consecutively, it is clear that they were concealing or not disclosing the fact during the interview. They were looking for a work-from-home kind of job, which is why they did not disclose their unavailability to work or manage people.

I am only thinking that I do not have any proof that they disclosed it or if they came to know about their health in the past month itself. Hence, asking them to resign may turn things sour. If they don't resign, can I even terminate them after asking them to resign?

Dear Mr. Umakanthan, will the MB Act be applicable in this situation since it's an IT firm with less than 10 employees?

Nice to see your response and glad to know everyone's time is not going to waste, Anonymous.

Like some other members mentioned above, the performance-related aspects—such as taking frequent leaves that can affect work—should not be combined with the maternity issue. Since you don't have any proof for what has happened so far, to strengthen your position from a legal perspective, I suggest beginning to send emails of whatever you wish to convey to her from now onwards. This will compel her to reply through emails, thereby compiling evidence.

If she is the type who replies verbally to avoid building up evidence, I suggest taking those inputs and writing back to her, summarizing what was discussed—what you said and what she said. That way, you can build up evidence for the whole situation, steering it in the direction you wish it to take.

Hope you get the point.

All the best.

Regards,
TS

Thank you for all the detailed suggestions, everyone. I think I will keep track of employees' hours and their ability to coordinate and work at least a few hours with other employees. Only two of her sick leaves remain. If she takes that and/or calls to say that she won’t be able to work when the rest of the team members are working, I will get that in writing. This will show her inability to communicate/stay in touch with other employees. Once I get enough evidence, I will ask her to put down her papers after two or three such incidents and get them in writing.

In our case, primarily only the Shops and Establishment Act is applicable. I will have to find out if maternity benefits are applicable for establishments with less than 10 people. Also, I read posts and was under the impression that termination during probation does not require a lengthy process of documentation for poor performance and issuance of warnings and suspension. That process is only required once the probation is completed.

Can a clause be added for future avoidance of such issues?

Can a clause like "Your services shall be liable to be terminated in case you are found physically or mentally unfit to execute the employment duties. The company reserves the right to require you to undergo a medical examination." be added for future avoidance of such issues? Also, is asking questions about personal health and family acceptable as per laws? Wouldn't it be a basis of discrimination if hiring decisions are made after asking such questions?

Dear questioner,

If your establishment has not employed 10 or more employees in total in the past or as of now, the Maternity Benefit Act of 1961 will not be applicable. Therefore, you do not have the legal obligation to extend maternity benefits. However, terminating her services as per the conditional clause in the orders of appointment on the alleged grounds without giving her a reasonable opportunity in accordance with the principles of natural justice is not advisable, as suggested by other members.

Termination during probation

As a format, you can simply mention that if the performance of the employee is not satisfactory during the probation period, including any extended period, the employer has the right to terminate the services of the probationer with or without notice and without assigning any reasons. This is called discharge simpliciter or simple discharge.

However, such a decision can be questioned by the aggrieved employee in a Court of Law. Therefore, to substantiate such a decision, it is better to establish clear parameters for performance, behavior, etc., of the probationer and to document them well.

Assessing Performance During Probation

Can an employee's inability to perform daily tasks like communicating with other team members, attending meetings, and taking too many planned leaves during probation be a parameter of poor performance? Today again, the employee has emailed for two planned leaves for this month.

Leave Entitlements Under the Gujarat Shops and Establishment Act

As per the Gujarat Shops and Establishment Act, employees are given 7 sick days, 7 casual days, and every employee who has worked for a period of two hundred and forty days or more in the year shall be allowed leave with wages for a number of days, calculated at the rate of one day for every twenty days of work performed by them during the previous calendar year.