Hi,
I have a female employee who has taken her second maternity leave with us in a period of 3 years and has extended it by another 3 months of unpaid leave. However, we have hired new people in the team, and the position is not available for her to return to after her maternity leave.
We would like her to resign and move on. Can we ask her to resign or terminate her? We have paid her 3 months' gross salary as per compliance during her notice period, and after that, she has taken 3 months of unpaid leave.
Please advise.
From India, Mumbai
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8I have a female employee who has taken her second maternity leave with us in a period of 3 years and has extended it by another 3 months of unpaid leave. However, we have hired new people in the team, and the position is not available for her to return to after her maternity leave.
We would like her to resign and move on. Can we ask her to resign or terminate her? We have paid her 3 months' gross salary as per compliance during her notice period, and after that, she has taken 3 months of unpaid leave.
Please advise.
From India, Mumbai
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Dear Priya,
There is no correlation between the number of maternity breaks and a time period. Secondly, you cannot link the present maternity leave with the past maternity leave.
Occasionally, complications arise during maternity, and therefore, women seek an extension of their maternity leave. When a woman is ready to forego her monthly salary, it shows the gravity of the situation.
To maintain the continuity of the work, you have taken on her replacement. Now you wish to dispense with the woman employee. However, whether to dispense the original employee or her replacement, this decision depends on the nature of the work, her designation, the performance of the employee who proceeded on the leave, etc. If the woman employee is in the worker category, then things are a little easier. Finding a job for workers is not much of a problem.
If you replace the employee, it will send a signal to all the employees that retention of the employee is not very important for the company. As an HR professional, we talk a lot about "Employee Engagement." However, engagement goes beyond just playing some games on the company premises. This type of decision might mentally disengage an employee. Hopefully, you can find out the cost of the mental disengagement vis-a-vis the revenue saved because of the removal of the employee.
Thanks,
Dinesh Divekar
From India, Bangalore
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There is no correlation between the number of maternity breaks and a time period. Secondly, you cannot link the present maternity leave with the past maternity leave.
Occasionally, complications arise during maternity, and therefore, women seek an extension of their maternity leave. When a woman is ready to forego her monthly salary, it shows the gravity of the situation.
To maintain the continuity of the work, you have taken on her replacement. Now you wish to dispense with the woman employee. However, whether to dispense the original employee or her replacement, this decision depends on the nature of the work, her designation, the performance of the employee who proceeded on the leave, etc. If the woman employee is in the worker category, then things are a little easier. Finding a job for workers is not much of a problem.
If you replace the employee, it will send a signal to all the employees that retention of the employee is not very important for the company. As an HR professional, we talk a lot about "Employee Engagement." However, engagement goes beyond just playing some games on the company premises. This type of decision might mentally disengage an employee. Hopefully, you can find out the cost of the mental disengagement vis-a-vis the revenue saved because of the removal of the employee.
Thanks,
Dinesh Divekar
From India, Bangalore
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Some relevant section of law relevant to the case:
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 of 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).
13. No deduction of wages in certain cases. -- No deduction from the normal and usual
daily wages of a woman entitled to maternity benefit under the provisions of this Act
shall be made by reason only of –
(a) the nature of work assigned to her by virtue of the provisions contained in subsection
(3) of section 4 : or
(b) breaks for nursing the child allowed to her under the provisions of section 11.
""I have a female employee who has taken her second maternity break with us in a period of 3 years and has extended her maternity break by another 3 months of unpaid leave""
Taking second maternity break is not unauthorised.
Extension of maternity leave was on what grounds?
Any medical certificate?
Is leave paid our Unpaid?
When you talk three months addition leave,please read :
10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or
miscarriage. -- A woman suffering illness arising out of pregnancy, delivery, premature
birth of child or miscarriage shall, on production of such proof as may be prescribed, be
entitled in addition to the period of absence allowed to her under section 6, or, as the case
may be, under section 9, to leave with wages at the rate of maternity benefit for a
maximum period of one month.
So take a careful decision.
Asking her to leave or forcing her to resign needs careful consideration abut legality.
From India, Pune
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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 of 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).
13. No deduction of wages in certain cases. -- No deduction from the normal and usual
daily wages of a woman entitled to maternity benefit under the provisions of this Act
shall be made by reason only of –
(a) the nature of work assigned to her by virtue of the provisions contained in subsection
(3) of section 4 : or
(b) breaks for nursing the child allowed to her under the provisions of section 11.
""I have a female employee who has taken her second maternity break with us in a period of 3 years and has extended her maternity break by another 3 months of unpaid leave""
Taking second maternity break is not unauthorised.
Extension of maternity leave was on what grounds?
Any medical certificate?
Is leave paid our Unpaid?
When you talk three months addition leave,please read :
10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or
miscarriage. -- A woman suffering illness arising out of pregnancy, delivery, premature
birth of child or miscarriage shall, on production of such proof as may be prescribed, be
entitled in addition to the period of absence allowed to her under section 6, or, as the case
may be, under section 9, to leave with wages at the rate of maternity benefit for a
maximum period of one month.
So take a careful decision.
Asking her to leave or forcing her to resign needs careful consideration abut legality.
From India, Pune
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Dear Advice Seeker,
Your Query: Can We Ask Her To Resign/Terminate Her? We Have Paid Her 3 Months Gross Salary As Per Compliance During Her Notice Period And Post That She Has Availed 3 Months Of Unpaid Leave. Please Advise.
Advice/Clarification: Resignation is voluntary and should never be sought; otherwise, it amounts to an unlawful/forceful act on the part of the employer/management. Hence, desist from even thinking along those lines.
Secondly, on what grounds are you, the employer/management, pondering over terminating her from employment/muster roll? Is it because the concerned female employee availed maternity leave/facilities she is legally entitled to avail? What notice period are you referring to - has she furnished a notice to be relieved from her duty/employment, or has the management insisted on it (influenced, instructed, instigated, or in any other manner whatsoever to give notice not of her own will)?
It is pertinent and expedient for you to thoroughly familiarize yourself with the provisions of the Maternity Act 1961 with subsequent amendments before taking any action.
Team Kritarth is, as always, available.
Team Kritarth, 16.6.2016
From India, Delhi
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Your Query: Can We Ask Her To Resign/Terminate Her? We Have Paid Her 3 Months Gross Salary As Per Compliance During Her Notice Period And Post That She Has Availed 3 Months Of Unpaid Leave. Please Advise.
Advice/Clarification: Resignation is voluntary and should never be sought; otherwise, it amounts to an unlawful/forceful act on the part of the employer/management. Hence, desist from even thinking along those lines.
Secondly, on what grounds are you, the employer/management, pondering over terminating her from employment/muster roll? Is it because the concerned female employee availed maternity leave/facilities she is legally entitled to avail? What notice period are you referring to - has she furnished a notice to be relieved from her duty/employment, or has the management insisted on it (influenced, instructed, instigated, or in any other manner whatsoever to give notice not of her own will)?
It is pertinent and expedient for you to thoroughly familiarize yourself with the provisions of the Maternity Act 1961 with subsequent amendments before taking any action.
Team Kritarth is, as always, available.
Team Kritarth, 16.6.2016
From India, Delhi
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Do you know how difficult it is to manage a baby even after 3 months? Ask all the females who are married. You indicated that you have paid the wages as part of compliance only indicates that if it were not a compliance issue, probably your organization would not have willingly paid for the same. Secondly, since you have now taken new team members, you have felt that there is no position for this employee who has gone on maternity leave. Was this inclusion of team member intentional? What if there are other female staff who would want to go on maternity leave and would want to extend due to extenuating reasons? Will they feel safe to go ahead on leave as there shall always be a fear in their mind if they would have a job with them when they join back from leave. What is the impact on staff when they view this? Please take a conscious decision before termination.
Termination is always easy - Retention is most difficult. If you are able to retain staff, then you are practicing good HR ethics.
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Termination is always easy - Retention is most difficult. If you are able to retain staff, then you are practicing good HR ethics.
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Dear,
Maternity leave is a statutory leave which has legal binding. In case of certain medical issues, it may need to be extended. Termination on this ground alone is not valid. It is important to review the penal clause of the relevant act.
You may counsel her and negotiate a settlement for separation, but terminating her services is not permissible. It would have been advisable to hire a temporary replacement, considering her eventual return.
Anurag Lakhotia
www.lexlabour.com
From India, Delhi
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Maternity leave is a statutory leave which has legal binding. In case of certain medical issues, it may need to be extended. Termination on this ground alone is not valid. It is important to review the penal clause of the relevant act.
You may counsel her and negotiate a settlement for separation, but terminating her services is not permissible. It would have been advisable to hire a temporary replacement, considering her eventual return.
Anurag Lakhotia
www.lexlabour.com
From India, Delhi
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If you terminate her services, it will be illegal. Let her rejoin whenever she desires. However, if the leave from the conveyed expected date of confinement exceeds, say, four months without any medical certificate, you can write a mild letter mentioning that absence beyond the maximum limit of leave under the act may be treated as unauthorized. Depending on the response, take further actions. Please be careful of the legal implications of the decision you make.
From India, Mumbai
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From India, Mumbai
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