Resignation During Maternity Leave: Can It Count as Notice Period? Seeking Legal Insights

Dear HRs,

Kindly suggest the law in this case, as an employee submits resignation during her maternity leave period, exactly during the last month of the leave term (150 days maternity pay already paid). She noted that as per the appointment order term, it is to be considered as one month notice period for resignation. Due to maternity leave, she is not ready to work and is requesting to consider that period as the notice period.

Is it right to consider?

She can submit her resignation while she is on maternity leave. At the same time, you cannot relieve her immediately without paying her full maternity benefits. Therefore, if her notice period is one month, and her period of leave is expiring after one month, allow her to use the notice period during her leave days. She can be relieved upon resuming duty. You cannot insist that she serve the notice period after she has returned from maternity leave.

Dear Sir,

First of all, ML is not a leave that is to be adjusted with the settlement part. ML is a statutory provision which has legal consequences as well. Please pay her ML up to the date of the relieving date and try to recover the notice period from the rest of the heads.

Regards,
AP

In this case, we must consider the legal framework under the Maternity Benefit Act, 1961 in India, along with the employment contract terms. Here are the relevant points:

Maternity Benefit Act, 1961:

Under this act, a female employee is entitled to 26 weeks (182 days) of maternity leave with pay. During the maternity leave, the employer cannot terminate the employee or alter the conditions of her employment to her disadvantage.

Resignation during Maternity Leave:

If an employee submits her resignation during maternity leave, this act does not explicitly address whether the maternity leave can be considered as part of the notice period. Therefore, the decision is often guided by the employment contract and company policies.

Notice Period and Employment Contract:

As the employee has mentioned that her resignation should be treated as the one-month notice period, this point should be checked against the terms mentioned in the appointment order. If the employment contract or company policy states that the notice period cannot overlap with any other leave (including maternity leave), then the employer is within their rights to request the employee to serve the notice period after the maternity leave ends.

Precedents in Practice:

Typically, maternity leave is considered a special kind of leave, and it is not common practice to treat it as a notice period, as the purpose of maternity leave is to provide a benefit and support to the employee during a critical time.

Recommendation:

Consult the Employment Contract: The specific terms of the employee's contract will play a crucial role. If the contract states that maternity leave can be used as a part of the notice period, then the employer might need to honor this.

Legal Guidance: Given that the Maternity Benefit Act does not directly address this scenario, seeking legal counsel can provide clarity and ensure compliance with labor laws.

Negotiation: It might be worth negotiating a mutually agreeable solution, such as considering a part of the maternity leave as notice period or waiving off a portion of the notice period, considering the employee's circumstances.

In general, from a legal and best-practice perspective, it is not ideal to treat maternity leave as a notice period unless explicitly allowed by company policy or employment contracts.