Hello Everyone,
I need your comments and suggestions for the below scenario:
1. Can an employer terminate a female employee after learning about her pregnancy, giving false reasons such as non-performance, etc.?
2. If not, what actions can be taken against the employer?
3. The employer has not drafted and displayed any policies such as Maternity Leave.
4. The employer claims that the Maternity policy does not apply to our firm.
5. However, the employee count is approximately 40.
Please advise.
From India, Mumbai
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I need your comments and suggestions for the below scenario:
1. Can an employer terminate a female employee after learning about her pregnancy, giving false reasons such as non-performance, etc.?
2. If not, what actions can be taken against the employer?
3. The employer has not drafted and displayed any policies such as Maternity Leave.
4. The employer claims that the Maternity policy does not apply to our firm.
5. However, the employee count is approximately 40.
Please advise.
From India, Mumbai
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Dear Maria,
Replies to your questions are as below:
1. Can an employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non-performance, etc.?
Reply: - When did the female employee communicate to the employer about her pregnancy? Did she officially inform after her first trimester? Is the woman covered under the ESI Act or Maternity Benefit Act (MBA)? Non-performance and maternity need to be considered separately. If the employer has sufficient evidence of non-performance, then they may terminate the services of the pregnant employee. However, before termination, the employer must conduct a domestic inquiry. Moreover, the female employee needs to be given a chance to improve her performance as well.
2. If not, then what action can be taken against the employer?
Reply: - If the grounds of non-performance are fictitious, then the pregnant employee may approach the labor office under whose jurisdiction the company office falls. Otherwise, she may report the matter to the National Council for Women. However, it is advisable to file a complaint with the Labor Office.
3. The employer has not drafted and displayed any policy such as Maternity Leave.
Reply: - It would be wrong not to do so. It is mandatory to display the provisions of the MBA at the company premises. It is illegal not to have a policy in place.
4. The employer claims that the Maternity policy does not apply to our firm.
5. Whereas the employee count is approximately 40.
Reply: - Since the total employee count is about 40, the provisions of the MBA very much apply to the employer. However, we need to know how many months or years of service the female employee has completed. Has she worked for more than 80 days? If yes, then only can she claim maternity benefits.
Thanks,
Dinesh Divekar
From India, Bangalore
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8036Replies to your questions are as below:
1. Can an employer terminate a female employee after knowing about her pregnancy, by giving any false reasons such as non-performance, etc.?
Reply: - When did the female employee communicate to the employer about her pregnancy? Did she officially inform after her first trimester? Is the woman covered under the ESI Act or Maternity Benefit Act (MBA)? Non-performance and maternity need to be considered separately. If the employer has sufficient evidence of non-performance, then they may terminate the services of the pregnant employee. However, before termination, the employer must conduct a domestic inquiry. Moreover, the female employee needs to be given a chance to improve her performance as well.
2. If not, then what action can be taken against the employer?
Reply: - If the grounds of non-performance are fictitious, then the pregnant employee may approach the labor office under whose jurisdiction the company office falls. Otherwise, she may report the matter to the National Council for Women. However, it is advisable to file a complaint with the Labor Office.
3. The employer has not drafted and displayed any policy such as Maternity Leave.
Reply: - It would be wrong not to do so. It is mandatory to display the provisions of the MBA at the company premises. It is illegal not to have a policy in place.
4. The employer claims that the Maternity policy does not apply to our firm.
5. Whereas the employee count is approximately 40.
Reply: - Since the total employee count is about 40, the provisions of the MBA very much apply to the employer. However, we need to know how many months or years of service the female employee has completed. Has she worked for more than 80 days? If yes, then only can she claim maternity benefits.
Thanks,
Dinesh Divekar
From India, Bangalore
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1. Can an employer terminate a female employee after knowing about her pregnancy, by giving false reasons such as non-performance, etc.? Was the employer informed of the pregnancy as provided in the act? If yes, the employer can't terminate services. If the employer exerts pressure, she can lodge a written complaint with the Government Labour office of the area. If the employer terminates service after the employee has given intimation of pregnancy, it will boomerang on the employer.
2. If not, then what action can be taken against the employer? Already explained above.
3. The employer has not drafted and displayed any policy such as Maternity Leave. The employer is not required to have its own maternity leave policy unless it is more favorable to employees. Yes, they are required to display an abstract of the act. But non-display per se is a minor offense.
4. The employer claims that the Maternity policy does not apply to our firm.
5. Whereas the employee count is approximately 40. He may say anything, but the act applies to his company as he engages more than 10 employees. Tell him the same through a letter, and if he refuses to abide by the act, tell him that you will be constrained to lodge a complaint with the local GLO. Let him reply by letter or email that it is not applicable to him, and you can carry the same document to the GLO of your area.
From India, Mumbai
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2. If not, then what action can be taken against the employer? Already explained above.
3. The employer has not drafted and displayed any policy such as Maternity Leave. The employer is not required to have its own maternity leave policy unless it is more favorable to employees. Yes, they are required to display an abstract of the act. But non-display per se is a minor offense.
4. The employer claims that the Maternity policy does not apply to our firm.
5. Whereas the employee count is approximately 40. He may say anything, but the act applies to his company as he engages more than 10 employees. Tell him the same through a letter, and if he refuses to abide by the act, tell him that you will be constrained to lodge a complaint with the local GLO. Let him reply by letter or email that it is not applicable to him, and you can carry the same document to the GLO of your area.
From India, Mumbai
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Discontinuation of an employee, whether she is pregnant or not, should follow fair procedures. She should not be terminated solely based on the grounds that she is pregnant and about to take maternity leave. It is an offense as per the MB Act. However, no employee can evade or escape genuine management action towards their non-performance, misconduct, etc., simply because they are pregnant. All actions should be well documented with performance reports, communications, review meetings, corrective actions taken, training records, and so on.
From India, Chennai
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From India, Chennai
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Thank you everyone for such a valuable feedback. What is the procedure to intimate the employer about the pregnancy? Verbal communication will have any disadvantage?
From India, Mumbai
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From India, Mumbai
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Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf
Maternity Leave Policy - posting.doc