A female employee hired for six months on a contract confirms her pregnancy in the first month of her joining. Is she eligible for any protection under the Maternity Benefit Act against termination of the contract when she has not completed 80 days of work?
Kindly restrict your answer to legality without considering what is ethical or unethical.
Regards,
From India, Delhi
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19Kindly restrict your answer to legality without considering what is ethical or unethical.
Regards,
From India, Delhi
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Supreme Court Ruling on Fixed-Term Contracts and Maternity Leave
In a recent judgment, the Supreme Court ruled that an employee on a fixed-term contract is entitled to the entire 26 weeks of leave, even if her contract ends during the leave period (Dr. Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299)).
But there is a difference between the above case and the matter with you. In Dr. Kavita's case, she was entitled to leave, but since the fixed term for which she was hired expired just after her leave started (eleven days after the start of leave), the contract of employment ended after 11 days. The FTC was not renewed, and due to this, the leave was automatically discontinued. The Court observed that not extending the maternity leave and/or paying the medical bonus, as applicable, would mean that the employee has been dismissed from service, which is against section 12(2)(a) of the Act.
Your Situation: Termination Clause and Eligibility Conditions
Now, coming to your situation, the employee was hired for a six-month period. To terminate the contract now, there should be some termination clause. Based on that clause, you can terminate the contract. Moreover, she will not meet the eligibility condition of 80 days immediately preceding 12 months. There are two conditions as per my interpretation: 12 months and 80 days of service in these 12 months. Though many experts have a different opinion about the 12 months in the eligibility condition, my interpretation is that to be eligible for maternity leave, there should be 80 days of working in 12 months. Simply working for 80 days, say in three months, does not make one eligible for maternity leave.
It is still a question of law. At the same time, denying employment to a woman based on her pregnancy is unethical. But is it ethical to demand 26 weeks of leave with pay by an employee who has not even worked for a year but has only worked for 80 days?
From India, Kannur
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In a recent judgment, the Supreme Court ruled that an employee on a fixed-term contract is entitled to the entire 26 weeks of leave, even if her contract ends during the leave period (Dr. Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299)).
But there is a difference between the above case and the matter with you. In Dr. Kavita's case, she was entitled to leave, but since the fixed term for which she was hired expired just after her leave started (eleven days after the start of leave), the contract of employment ended after 11 days. The FTC was not renewed, and due to this, the leave was automatically discontinued. The Court observed that not extending the maternity leave and/or paying the medical bonus, as applicable, would mean that the employee has been dismissed from service, which is against section 12(2)(a) of the Act.
Your Situation: Termination Clause and Eligibility Conditions
Now, coming to your situation, the employee was hired for a six-month period. To terminate the contract now, there should be some termination clause. Based on that clause, you can terminate the contract. Moreover, she will not meet the eligibility condition of 80 days immediately preceding 12 months. There are two conditions as per my interpretation: 12 months and 80 days of service in these 12 months. Though many experts have a different opinion about the 12 months in the eligibility condition, my interpretation is that to be eligible for maternity leave, there should be 80 days of working in 12 months. Simply working for 80 days, say in three months, does not make one eligible for maternity leave.
It is still a question of law. At the same time, denying employment to a woman based on her pregnancy is unethical. But is it ethical to demand 26 weeks of leave with pay by an employee who has not even worked for a year but has only worked for 80 days?
From India, Kannur
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The female employee is not eligible for benefit because she did not comply with 80 days of employment prior to her pregnency.
From India, Mumbai
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From India, Mumbai
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But 80 days is the service required before child birth or expected date of delivery and not for pregnancy.
From India, Kannur
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From India, Kannur
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As per the law, a female employee is eligible for maternity benefits only if she has been with the organization for a minimum period of 80 days. In this case, her pregnancy was confirmed within 30 days of joining, and therefore, she will not be eligible. However, you can decide not to extend her contract beyond the existing 6 months.
From India, Bengaluru
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From India, Bengaluru
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@Prameela-Sasindran, "As per law, a female employee would be eligible for maternity benefits only if she has been with the organization for a minimum period of 80 days" may be corrected as "80 days during the 12 months immediately preceding the expected date of delivery."
Again, section 12(2)(a) of the Maternity Benefits Act prohibits the dismissal of a pregnant employee. However, before she can proceed for maternity leave, her contract of employment will come to an end. Then it will be a question of law whether she should be given leave or not. When an employer has no obligation to renew a contract of employment beyond the period prefixed, the termination of employment is automatic and it will happen on the expiry of the period for which the appointment is given. The latest Supreme Court verdict in Dr. Kavita Yadav vs. The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299) should also be considered in this regard.
From India, Kannur
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Again, section 12(2)(a) of the Maternity Benefits Act prohibits the dismissal of a pregnant employee. However, before she can proceed for maternity leave, her contract of employment will come to an end. Then it will be a question of law whether she should be given leave or not. When an employer has no obligation to renew a contract of employment beyond the period prefixed, the termination of employment is automatic and it will happen on the expiry of the period for which the appointment is given. The latest Supreme Court verdict in Dr. Kavita Yadav vs. The Secretary, Ministry of Health and Family Welfare Department and Others (2023 LLR 1299) should also be considered in this regard.
From India, Kannur
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Flaws in the Maternity Benefit Act
The flaw lies in the Act, the reason being beneficiaries suffer. The one who claims benefits should know the eligibility. Further, why would the employer bear the cost without a return from the employee? In this case, the employee declares her pregnancy within 30 days of her employment and claims benefits under the Maternity Benefit Act, which is not a desirable scenario.
Therefore, the employer can remove her as per the terms of the appointment or by providing notice, and it should not be treated as illegal. To strengthen the Act, the government should provide insurance where ESI does not exist.
From India, Mumbai
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The flaw lies in the Act, the reason being beneficiaries suffer. The one who claims benefits should know the eligibility. Further, why would the employer bear the cost without a return from the employee? In this case, the employee declares her pregnancy within 30 days of her employment and claims benefits under the Maternity Benefit Act, which is not a desirable scenario.
Therefore, the employer can remove her as per the terms of the appointment or by providing notice, and it should not be treated as illegal. To strengthen the Act, the government should provide insurance where ESI does not exist.
From India, Mumbai
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ESI Coverage and Maternity Benefits
Even in the case of ESI-covered employees, the ESI Corporation will disown their liability, stating that to be entitled to maternity benefits, the insured employee should have 70 days of contribution, and that too in two consecutive contribution periods. This means the benefit will be available only to those employees who have worked for one year, i.e., two contribution periods of 6 months each.
Yes, the fault lies with the legislation, and it is unfortunate that this issue has not been addressed in the new labor codes, which remain a copy-paste of the original Acts!
From India, Kannur
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Even in the case of ESI-covered employees, the ESI Corporation will disown their liability, stating that to be entitled to maternity benefits, the insured employee should have 70 days of contribution, and that too in two consecutive contribution periods. This means the benefit will be available only to those employees who have worked for one year, i.e., two contribution periods of 6 months each.
Yes, the fault lies with the legislation, and it is unfortunate that this issue has not been addressed in the new labor codes, which remain a copy-paste of the original Acts!
From India, Kannur
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Friends, I would suggest the views expressed in this link be taken note of: https://www.lawrbit.com/article/mate...pronouncement/
Factors to Consider for Maternity Benefits
In the query at hand, two factors are implied: 1) the 80 days minimum service required to qualify for maternity benefits (MB) and 2) the tenure of employment within which the MB must be enjoyed. My views are that point No. 2 has been amply clarified by the pronouncements of the Supreme Court in this judgment beyond doubt. However, point No. 1 requires further deliberation. It is important to appreciate the fact that a "pregnant woman" (which is not being disputed) "cannot be terminated on the pretext of being 'she is pregnant'." I'm sure this factor cannot be overlooked. Ultimately, what needs to be seen is whether she will continue to be employed until her contract term of 6 months and "gets extended beyond the 6 months," by which time she will complete the mandatory 80 days and thus be entitled to MB. Am I correct?
Relevant Provisions of the Maternity Benefit Act
Further, the relevant provisions of the MB Act should also be read in conjunction: "12. Dismissal during absence or pregnancy. -- (1) Where a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. (2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: 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. (b) Any woman deprived of maternity benefit or medical bonus or both may, within sixty days from the date on which the order of such deprivation is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefits or medical bonus or both, shall be final. (c) Nothing contained in this sub-section shall affect the provisions contained in subsection (1)."
From India, Bangalore
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Factors to Consider for Maternity Benefits
In the query at hand, two factors are implied: 1) the 80 days minimum service required to qualify for maternity benefits (MB) and 2) the tenure of employment within which the MB must be enjoyed. My views are that point No. 2 has been amply clarified by the pronouncements of the Supreme Court in this judgment beyond doubt. However, point No. 1 requires further deliberation. It is important to appreciate the fact that a "pregnant woman" (which is not being disputed) "cannot be terminated on the pretext of being 'she is pregnant'." I'm sure this factor cannot be overlooked. Ultimately, what needs to be seen is whether she will continue to be employed until her contract term of 6 months and "gets extended beyond the 6 months," by which time she will complete the mandatory 80 days and thus be entitled to MB. Am I correct?
Relevant Provisions of the Maternity Benefit Act
Further, the relevant provisions of the MB Act should also be read in conjunction: "12. Dismissal during absence or pregnancy. -- (1) Where a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. (2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: 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. (b) Any woman deprived of maternity benefit or medical bonus or both may, within sixty days from the date on which the order of such deprivation is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefits or medical bonus or both, shall be final. (c) Nothing contained in this sub-section shall affect the provisions contained in subsection (1)."
From India, Bangalore
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Creche under Maternity Benefit Act.pdf