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 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
10Kindly restrict your answer to legality without considering what is ethical or unethical.
Regards,
From India, Delhi
In a recent judgement the Supreme Court has ruled that an employee on fixed term contract shall be entitled to the entire 26 weeks lavee even if her contract of employment will come to an end 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. The case of Dr Kavita was that she had entitlement of leave but since the fixed term for which she was hired has expired just after her leave started ( eleven days of starting of leave), obviously, the contract of employment had come to an end after 11 days of starting of leave. 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.
Now coming to your situation, the employee was hired for six months period. In order to terminate the contract now, there should be some termination clause. On the basis of that clause you can terminate the contract now. Moreover, she will not come under the eligibility condition of 80 days immediately preceding 12 months. There are two conditions as per my interpretation, viz, 12 months and 80 days service in this 12 months. Though many experts have different opinion about 12 months in the eligibility condition, my interpretation is that in order to be eligible for maternity leave there should be 80 days working in 12 months, and as such, simply by working for 80 days, say in three months, one cannot become eligible for maternity leave.
It is still a question of law. At the same time, denying employment to a woman on the basis of her pregnancy is again unethical also. But is it ethical to demand 26 weeks leave with pay by an employee who has not even worked for a year, but has worked only for 80 days?
From India, Kannur
But there is a difference between the above case and the matter with you. The case of Dr Kavita was that she had entitlement of leave but since the fixed term for which she was hired has expired just after her leave started ( eleven days of starting of leave), obviously, the contract of employment had come to an end after 11 days of starting of leave. 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.
Now coming to your situation, the employee was hired for six months period. In order to terminate the contract now, there should be some termination clause. On the basis of that clause you can terminate the contract now. Moreover, she will not come under the eligibility condition of 80 days immediately preceding 12 months. There are two conditions as per my interpretation, viz, 12 months and 80 days service in this 12 months. Though many experts have different opinion about 12 months in the eligibility condition, my interpretation is that in order to be eligible for maternity leave there should be 80 days working in 12 months, and as such, simply by working for 80 days, say in three months, one cannot become eligible for maternity leave.
It is still a question of law. At the same time, denying employment to a woman on the basis of her pregnancy is again unethical also. But is it ethical to demand 26 weeks leave with pay by an employee who has not even worked for a year, but has worked only for 80 days?
From India, Kannur
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
From India, Mumbai
But 80 days is the service required before child birth or expected date of delivery and not for pregnancy.
From India, Kannur
From India, Kannur
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. In this case, her pregnancy was confirmed within 30 days of joining and since she will not be eligible. However, you can decide not to extend her Contract beyond the existing 6 months.
From India, Bengaluru
From India, Bengaluru
@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 12 months immediately preceding the expected date of delivery".
Again, section 12(2)(a) of the Maternity Benefits Act prohibits dismissal of a pregnant employee. But 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 perod for which the appointment is given. But the latest Supreme Court verdict in Dr Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others ( 2023 LLR 1299) is also to be read along with this.
From India, Kannur
Again, section 12(2)(a) of the Maternity Benefits Act prohibits dismissal of a pregnant employee. But 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 perod for which the appointment is given. But the latest Supreme Court verdict in Dr Kavita Yadav Vs The Secretary, Ministry of Health and Family Welfare Department and Others ( 2023 LLR 1299) is also to be read along with this.
From India, Kannur
The flaw lies in Act, the reason being beneficiaries suffer.
The one who claims for benefit should know the eligibility. Further, why the employer would bear the cost without return from the employee. In the instant case the employee declares her pregnency within 30 days of her employment and claiming benefits under MB act is not a desirable case.
Therefore the employer can remove as per the terms of appointment or by providing notice, and should not be treated as illegal. To strengthen the Act the govt should provide insurance, where ESI does not exist.
From India, Mumbai
The one who claims for benefit should know the eligibility. Further, why the employer would bear the cost without return from the employee. In the instant case the employee declares her pregnency within 30 days of her employment and claiming benefits under MB act is not a desirable case.
Therefore the employer can remove as per the terms of appointment or by providing notice, and should not be treated as illegal. To strengthen the Act the govt should provide insurance, where ESI does not exist.
From India, Mumbai
Even in the case of ESI covered employees, the ESI Corporation will disown their liability saying that in order to be entitled to maternity benefits the insured employee should have 70 days contribution and hat also in TWO consecutive contribution periods. That means the benefit will be available only to those employees who have worked for one year, ie, two contribution periods of 6 months each.
Yes, the fault is with the legislation and it is unfortunate that this issue has not been addressed in the new labour codes which remained a copy paste of the original Acts!
From India, Kannur
Yes, the fault is with the legislation and it is unfortunate that this issue has not been addressed in the new labour codes which remained a copy paste of the original Acts!
From India, Kannur
Dear Mr Madhu,
In the beginning stage of the enacted labour laws was remained good at least for 30-40 years. There after our legal institutions passed several orders analysing diffrent cases with their interpretations of at different point of time. In the present day all the laws enforced for labour welfare seemed to lost their existence.
In present day things are being managed keeping aside the core values.
From India, Mumbai
In the beginning stage of the enacted labour laws was remained good at least for 30-40 years. There after our legal institutions passed several orders analysing diffrent cases with their interpretations of at different point of time. In the present day all the laws enforced for labour welfare seemed to lost their existence.
In present day things are being managed keeping aside the core values.
From India, Mumbai
Dear Mohanty, you said it. We have a lots of interpretations on the same section of a particular Act which are remaining uncodified into the Act by means of amendment to the principal Act. This is evident from the new labour Codes. had it been drafted optimistically, many such interpretations of law could have been included in the Codes so that they would have become effective to be followed by all of us. The result is that with the exception of a very few sections, the Codes are just Copy and Paste of the current Acts.
From India, Kannur
From India, Kannur
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Creche under Maternity Benefit Act.pdf
MATERNITY BENEFIT ACT 2009.doc