Legal Concerns: Can We Deny a Female Employee's Return After Maternity Leave?

Hello everyone,

Can anybody tell me if it is possible that we don't allow a female employee to join the office after her maternity leave is over? As her position is already filled and we don't have any other option to rehire her, does it have any legal obligations as an employer or what's the correct way to do this?

Dear Reena Kamboj,

The concept of maternity leave

The concept of maternity leave is a social obligation that recognizes the importance of supporting women during pregnancy and childbirth. In the capitalistic world, sustaining the competition is always a challenge. To tide over this challenge, companies develop a single-minded focus to maximize profit. To achieve a balance between the accumulation of unreasonable profit and social obligations, governments worldwide bring worker-friendly legislation where employers are forced to partake in profit in the interest of society. This is the context of the introduction of the law on maternity leave.

Impact of maternity leave on operations

Yes, maternity leave brings discontinuity in operations because of the non-availability of a working woman. But then the companies are expected to be accommodative. They can hire a contract employee as a temporary measure. However, the permanent employee who availed of maternity leave remains on the rolls of the company, and there is no question of "rehiring" her.

Fair treatment of employees on maternity leave

Your post implies that you have discontinued the services of the woman employee who went on maternity leave. It is grossly unfair. The government that brought legislation to provide the childcare facility has become "misconduct" in the eyes of the administration of your company! What is the basis of this thinking? Let such employers take one more backstep and not hire female employees at all. This will even avoid making the payment for the wages during the maternity period, and there is no question of "rehiring" a woman employee! In Hindi, the phrase that appropriately describes this situation is "no rahega baas, na rahegi baasuri."

Recommendation on handling maternity leave returnees

Coming to your query, rather than continuing with the employment of the replacement, call back the employee who went on maternity leave. In right earnest, her employment merits restoration. By chance, if she says 'no' to rejoin, you can continue with her reliever. Not otherwise.

Thanks,

Dinesh Divekar

Hi,

After the completion of maternity leave (182 days, and if any further extension of leave is requested by the employee, say for a month on medical grounds), there is no statutory obligation on the part of the employer. Terminating or compelling resignation during the maternity period alone is against the law. However, the employer should ensure that 100% of the maternity leave salary is paid to the employee before she is relieved.

The employer cannot unilaterally terminate the contract, and the principles of natural justice should be strictly followed. You cannot close the door just like that. Even if the employer is not willing to accommodate the employee after the maternity leave period, the employer should allow her to join back, provide a sufficient timeframe for the employee to look for an alternate job, or pay the salary in lieu of the notice period. Please follow the separation clause as mentioned in the Contract of Appointment letter entered with the employee.

Though there will not be any legal implications, on humanitarian grounds, the employer should reconsider the decision of not hiring back. They may consider allocating some other work that can be completed from home, at least for a period of 3-6 months.