Pregnant and Facing a PIP: How Should We Handle Potential Job Termination?

My wife is in her seventh month of pregnancy, and her company sent her a Performance Improvement Plan (PIP) email, stating that her performance has been low for the past six months, even though she has been providing extended support. On September 26th, her manager sent an email to the upper manager requesting timesheets to log her effort. In that email, he mentioned that she would be going on maternity leave after November 30th. However, the very next day, on September 27th, she received the PIP email. She talked with her manager, and he is saying, 'I have not given your feedback; this is an organization-level decision.'

She applied for maternity leave starting on October 17th due to some health issues, but they are not approving her maternity leave, citing that she is in the PIP period.

If they send a termination email, what should she do?

Hi, termination during the pregnancy period is not legal, and employers have no right to terminate an employee during pregnancy, even if it is performance-related. This can be challenged through the Labor Office of that office's jurisdiction. A copy of the maternity leave request application and any official communication received from the employer should be preserved safely for further proceedings.

If they send a termination email, what should she do? Many landmark judgments are available for reinstatement through the courts. In fact, these issues will be addressed in the Labour office itself before receiving a failure report.

Report to ACL/JCL on layoff threats to pregnant employees

Please reach out to trade unions in Maharashtra for guidance.

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Invoking Section 12 for Dismissal

The employer might attempt to invoke the provision of subsection (2)(a) of section 12, which states: "Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both."

However, to invoke this section, the PIP should be classified as 'misconduct' according to the contract of employment, Employee Handbook, or Certified Standing Orders that define the employee-employer relationship. In some companies, poor performance is treated as dereliction of duty, which could lead to the termination of the employment contract. Therefore, the management's actions may be seen as a deliberate attempt to avoid paying maternity benefits. You should request the performance track record from the reporting officer. A PIP cannot be initiated without a performance evaluation, so you can ask for the performance evaluation report for the past period.

She is on leave now, but still, they are not approved leaves. What should we do if they do not pay her salary for this month?

You cannot take maternity leave more than 8 weeks prior to the date of delivery. Therefore, if her expected date of delivery is within this timeframe, she can apply for the benefits stating that she would be under maternity leave from... till...

There is a format for the same, but I am not sure whether it is the same for all states. The one appended is actually used in Mines and Circus, but you can use it universally as well.

Maternity Benefit Act, 1961

FORM E: Notice under Section 6 of the Maternity Benefit Act, 1961 for Proceeding on Maternity Leave

To

___________________

I, _________ (name of the woman), wife/daughter of ___________ employed as _______ at ______ (name of establishment), hereby give notice that I expect to be confined within eight weeks next following from the date of this notice/have given birth to a child on _____ (date) and shall be absent from work from _______ (date). I shall not work in any establishment during the period for which I receive maternity benefits.

For the purpose of section 7, I hereby nominate ______ (here enter name and address of the nominee) to receive maternity benefits and/or any other amount due to me under the Act in case of my death.

Signature or thumb impression of the woman

Date _____________

Please note that the above leave request is legally binding, but a formal letter informing the employer of the expected date of delivery would be acceptable. If the leave is within 8 weeks of the expected date of delivery, the employer cannot refuse it.

Please note that maternity benefits are available to those employed in organizations covered by the Maternity Benefits Act. A factory or mine is covered by the Act without reference to the number of employees, but a commercial establishment is covered only when it has at least 10 employees.

Termination Concerns and Maternity Leave

They are planning to send a termination email on 27th October as her PIP period will complete on that date. She heard from colleagues that they have already decided to terminate her. What can we do now?

Maternity Leave Situation

My wife has been on maternity leave since 17th October, but they have not approved her leave yet. Her expected delivery date is 22nd December, but due to some complications, she had to take leave from 17th October.

They are aware of all the details but do not want to keep her in the company.

She should have started her leave before she was actually eligible for maternity leave. However, that cannot be a ground for termination. She can file a complaint with the appropriate authority for illegal termination of employment, knowing that she is pregnant and just to deprive her of maternity benefits.

Thank you all for your assistance. Here's an update on the actions we took:

Achievements and Performance Review

We sent a list of achievements from the past six months. She was appreciated by the team for her work and had strong points for the performance review. We highlighted the irrelevant points from the PIP.

Request for Performance Report

We clearly requested the performance report, outlining areas where expectations were not met and explaining why these issues were not addressed at the time.

Maternity Leave and Salary

We sent another email with maternity details and complications. As a result, despite not having leave approval, the leave salary was credited for the entire six-month maternity period.

Decision to Leave the Company

After maternity leave, they expected us to rejoin, but we decided to leave the company due to the mental pressure caused by performing honest work. I have now joined a new organization and am expecting a better work culture here.

Once again, thank you all.

Legal Protections for Pregnant Employees in India

Maternity Benefit Act, 1961:
Under Section 12 of the Maternity Benefit Act, no employer can dismiss or terminate a woman during her maternity leave or when she is pregnant. Any action that deprives a woman of maternity benefits during pregnancy is considered illegal.

Termination During Pregnancy:
If an employer terminates a pregnant employee, the onus is on the employer to prove that the termination was not related to her pregnancy or maternity leave application. Sending a Performance Improvement Plan (PIP) or refusing maternity leave during pregnancy can be seen as discriminatory or retaliatory.

Denial of Maternity Leave:
As per the Act, a pregnant employee is entitled to 26 weeks of maternity leave. Medical complications during pregnancy further strengthen her case for leave under the Act.

Steps You Should Take

1. Document Everything:
Preserve all communication, including:
- The PIP email.
- Emails where extended support or additional work was acknowledged.
- The email where her manager mentioned maternity leave.
- Any refusal of her maternity leave application.
This will be critical evidence if the matter escalates legally.

2. Respond to the PIP Email:
Politely respond to the PIP email, outlining her contributions and highlighting the medical challenges she is facing due to pregnancy. Include points such as:
- Extended support provided during the past six months.
- Any recognition or appreciation she received during this period.
- The fact that the PIP email was sent right after maternity leave was discussed, which could be perceived as discriminatory.

3. File a Written Complaint with HR:
Submit a formal written complaint to the HR department, highlighting:
- The denial of maternity leave despite her medical condition.
- The timing of the PIP email right after maternity leave discussions.
- Requesting immediate approval of her maternity leave as per the Maternity Benefit Act.

4. Reach Out to the Labour Commissioner (if needed):
If the company denies maternity leave or terminates her employment, approach the local Labour Commissioner. File a grievance under the Maternity Benefit Act for violation of her maternity rights.

5. Seek Legal Assistance:
If termination occurs, consult a lawyer specializing in employment law. File a case for wrongful termination and claim compensation for emotional distress, loss of employment, and violation of legal rights.

Points to Highlight If Termination Happens
- Illegal Discrimination: Highlight that the termination was discriminatory, given it occurred after her pregnancy and maternity leave discussions.
- Violation of Maternity Rights: Emphasize the denial of her statutory rights under the Maternity Benefit Act.
- Contribution Record: Show proof of her extended support and contributions to counter the performance concerns raised in the PIP.

Immediate Actions
- File the maternity leave application through email and mention her health condition with supporting medical documentation.
- If maternity leave is denied, follow up in writing and escalate the matter to senior HR personnel.
- Prepare a list of all supportive evidence, including emails, performance records, and health documents, to build a strong case.