Hi,
We are a small business with fewer than 7 employees, and we are currently in urgent need of hiring in the IT department. We recently onboarded a candidate with 6 years of experience and a salary package of 4.5LPA, which we offered 11LPA for remote work. This individual was hired for a senior position due to an upcoming project that requires senior expertise. Her first day was on August 25, and today is September 27. Within this short period, she has already taken 5 sick leaves out of 7 sick days and 15 vacation days.
After requesting more sick leave this week, she disclosed to us that she is pregnant, which was unexpected given the short duration of her employment. She mentioned struggling with depression and anxiety due to her pregnancy, indicating potential difficulty in maintaining regular work hours. Our company allows flexible work hours for all employees, even before knowing about her pregnancy.
Considering the critical project that necessitated her hiring, her frequent absences have begun to impact our operations significantly. While we understand and support her pregnancy, her current health condition raises concerns about her ability to meet the senior supervisory role's demands as initially discussed during the hiring process.
We are hesitant to terminate her employment based on her pregnancy, but we are also concerned about our business requirements not being met. Can you provide guidance on how we can handle this situation effectively while balancing legal and ethical considerations? Thank you for your assistance.
From Canada, Vancouver
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We are a small business with fewer than 7 employees, and we are currently in urgent need of hiring in the IT department. We recently onboarded a candidate with 6 years of experience and a salary package of 4.5LPA, which we offered 11LPA for remote work. This individual was hired for a senior position due to an upcoming project that requires senior expertise. Her first day was on August 25, and today is September 27. Within this short period, she has already taken 5 sick leaves out of 7 sick days and 15 vacation days.
After requesting more sick leave this week, she disclosed to us that she is pregnant, which was unexpected given the short duration of her employment. She mentioned struggling with depression and anxiety due to her pregnancy, indicating potential difficulty in maintaining regular work hours. Our company allows flexible work hours for all employees, even before knowing about her pregnancy.
Considering the critical project that necessitated her hiring, her frequent absences have begun to impact our operations significantly. While we understand and support her pregnancy, her current health condition raises concerns about her ability to meet the senior supervisory role's demands as initially discussed during the hiring process.
We are hesitant to terminate her employment based on her pregnancy, but we are also concerned about our business requirements not being met. Can you provide guidance on how we can handle this situation effectively while balancing legal and ethical considerations? Thank you for your assistance.
From Canada, Vancouver
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Dear member,
You have employed the woman employee on 25-Aug-2021. Therefore, hardly a month is passed. Have you issued her the appointment letter? You say that she is on probation. In that case, when her probation period will complete. Have you included the separation clause in the appointment letter and if yes, then what are the conditions if the employee is on probation?
The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?
You have the following options: -
a) Talk to her and find out the condition of her health. Since she suffering due to depression and anxiety, on medical grounds, ask her to put up a letter of resignation.
b) The second option is to serve her a show-cause notice on account of poor performance. If the reply is not satisfactory, then you can terminate her services.
Conditions of Maternity Benefit Act, 1961 (with an amendment in 2017): - Maternity benefit in India is mainly governed by the Maternity Benefit Act, 1961 that applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees’ State Insurance Act, 1948. Since you do not employ 10 or more employees, the act does not apply to your company.
Secondly, the same act provides that a woman will be paid maternity benefit at the rate of her average daily wage in the three months preceding her maternity leave. However, the woman needs to have worked for the employer for at least 80 days in the 12 months preceding the date of her expected delivery.
Since the woman employee has not completed 80 days of her employment, provisions of the said Act do not apply to her.
To know more about these conditions, you may click the following link:
https://www.livemint.com/money/perso...655754106.html
If you wish to download a copy of the Act, then you may click the following link:
https://www.citehr.com/581449-matern...tive-date.html
So hurry up! You can very well close the case in this week itself. Do not drag it any further.
Thanks,
Dinesh Divekar
From India, Bangalore
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8224You have employed the woman employee on 25-Aug-2021. Therefore, hardly a month is passed. Have you issued her the appointment letter? You say that she is on probation. In that case, when her probation period will complete. Have you included the separation clause in the appointment letter and if yes, then what are the conditions if the employee is on probation?
The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?
You have the following options: -
a) Talk to her and find out the condition of her health. Since she suffering due to depression and anxiety, on medical grounds, ask her to put up a letter of resignation.
b) The second option is to serve her a show-cause notice on account of poor performance. If the reply is not satisfactory, then you can terminate her services.
Conditions of Maternity Benefit Act, 1961 (with an amendment in 2017): - Maternity benefit in India is mainly governed by the Maternity Benefit Act, 1961 that applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees’ State Insurance Act, 1948. Since you do not employ 10 or more employees, the act does not apply to your company.
Secondly, the same act provides that a woman will be paid maternity benefit at the rate of her average daily wage in the three months preceding her maternity leave. However, the woman needs to have worked for the employer for at least 80 days in the 12 months preceding the date of her expected delivery.
Since the woman employee has not completed 80 days of her employment, provisions of the said Act do not apply to her.
To know more about these conditions, you may click the following link:
https://www.livemint.com/money/perso...655754106.html
If you wish to download a copy of the Act, then you may click the following link:
https://www.citehr.com/581449-matern...tive-date.html
So hurry up! You can very well close the case in this week itself. Do not drag it any further.
Thanks,
Dinesh Divekar
From India, Bangalore
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Dear Mr. Dinesh,
Thank you for sharing your valuable knowledge with me. The employee was issued an appointment letter with the clause "On affirmative acceptance of this offer, a separate Probationary Appointment Letter shall be issued to you for this position. Your probation period shall be 8 months. After probation you shall be issued a confirmation appointment letter. During probation, the company reserves the right to terminate the employment without any notice if your performance is not deemed satisfactory. In case the employee wants to leave the company during probation period, he/she is required to give one month’s prior notice to the management." Now that I see the documents sent to the employee for signature have been signed, but i forgot to attach seperate probationary appointment letter as mentioned in the clause. The seperate probationary letter basically reiterated everything in the offer letter.
Can i provide her a seperate probationary letter now saying that as mentioned in offer letter, i am issuing her seperate probationary letter that i forgot to attach previously. Although conditions of probational seperation are clearly mentioned in offer letter.
The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?
No. The employee took 5 sick leaves out of 7 for the year before 20 aug i.e. within first month of her joining. Only yest when she needed more leaves she called her reporting manager to verbally inform that she has doctor appointment tomorrow for her pregnancy and that she is pregnant. And she may or may not work the day before her appointment since lately she is depressed and anxious.
I agree that during interview we did not ask her personal question like if she is family planning because we did not think about it but now it seems like she only joined us because we are a small business with work from home options n flexible hours.
Frequent absence and misuse of flexible hours i.e. working 5am when entire team is not working is not appropriate. Her position requires her to update business analysts and communicate, join meetings and work with other employees. She cannot work at say midnight and say she is pregnant n depressed so we should allow that. Can she do that?
I was looking to train her for 2-3 months and then ask her to supervise and train junior but clearly she will not be able to fulfill that given her health. I am a very small business owner and i dont have enough team to compensate for her work or hire another employee and pay her too.
Can i terminate or ask her to resign if her performance is affected?
From Canada, Vancouver
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Thank you for sharing your valuable knowledge with me. The employee was issued an appointment letter with the clause "On affirmative acceptance of this offer, a separate Probationary Appointment Letter shall be issued to you for this position. Your probation period shall be 8 months. After probation you shall be issued a confirmation appointment letter. During probation, the company reserves the right to terminate the employment without any notice if your performance is not deemed satisfactory. In case the employee wants to leave the company during probation period, he/she is required to give one month’s prior notice to the management." Now that I see the documents sent to the employee for signature have been signed, but i forgot to attach seperate probationary appointment letter as mentioned in the clause. The seperate probationary letter basically reiterated everything in the offer letter.
Can i provide her a seperate probationary letter now saying that as mentioned in offer letter, i am issuing her seperate probationary letter that i forgot to attach previously. Although conditions of probational seperation are clearly mentioned in offer letter.
The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?
No. The employee took 5 sick leaves out of 7 for the year before 20 aug i.e. within first month of her joining. Only yest when she needed more leaves she called her reporting manager to verbally inform that she has doctor appointment tomorrow for her pregnancy and that she is pregnant. And she may or may not work the day before her appointment since lately she is depressed and anxious.
I agree that during interview we did not ask her personal question like if she is family planning because we did not think about it but now it seems like she only joined us because we are a small business with work from home options n flexible hours.
Frequent absence and misuse of flexible hours i.e. working 5am when entire team is not working is not appropriate. Her position requires her to update business analysts and communicate, join meetings and work with other employees. She cannot work at say midnight and say she is pregnant n depressed so we should allow that. Can she do that?
I was looking to train her for 2-3 months and then ask her to supervise and train junior but clearly she will not be able to fulfill that given her health. I am a very small business owner and i dont have enough team to compensate for her work or hire another employee and pay her too.
Can i terminate or ask her to resign if her performance is affected?
From Canada, Vancouver
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This employee, being in a senior-level position, will not receive protection under labor laws. However, when you prepared the appointment order (a separate probation letter is not required), you made a mistake by including a sentence stating that her services may be terminated during probation without notice or reason. If you have mentioned that termination may occur due to poor performance, then you must provide her with an opportunity to be heard and, of course, a chance to improve her performance. This process will take time. While you may have quantifiable results regarding her performance, they will not suffice if you terminate her on the grounds of poor performance. A termination based on poor performance is stigmatic and could be challenged on the basis that she was not given a chance to defend herself. Assessing an employee's potential in just one month is very challenging.
The best course of action now is to have an open discussion with the employee. Clearly communicate your expectations from her, the reasons she was offered the position, and the current situation. You can explain that she was primarily hired to manage the project in the pipeline, and if she expects more time off or flexible hours, it may not be feasible to retain her. Ultimately, you can ask her to resign. Under normal circumstances, she will likely agree.
From India, Kannur
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The best course of action now is to have an open discussion with the employee. Clearly communicate your expectations from her, the reasons she was offered the position, and the current situation. You can explain that she was primarily hired to manage the project in the pipeline, and if she expects more time off or flexible hours, it may not be feasible to retain her. Ultimately, you can ask her to resign. Under normal circumstances, she will likely agree.
From India, Kannur
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Hello,
Further to what Dinesh Divekar and Madhu have suggested, I recommend focusing on her depression and anxiety issues rather than her pregnancy. You could ask her to submit her resignation citing these reasons instead of terminating her. That is always a safer approach. Many employees become more productive once they have addressed their health issues. This lady might claim that the company terminated her unfairly once she overcomes this phase of life.
Regarding your statement, "I do not want to be mean and cruel," there are situations that require compassion and situations that call for logical thinking. It is crucial not to mix up these approaches as it can lead to improper actions. If this lady had been transparent in August 2021, perhaps she would have deserved some empathy and a compassionate approach.
You have not specified which month of her term she is currently in. If she was more than one month pregnant in August, there is a chance that she was aware of her pregnancy when you offered her the job, especially if the critical nature of the position was explained. In such cases, it is essential to proceed with necessary actions while considering legal implications, as suggested by Dinesh and Madhu.
Start the recruitment process for a replacement immediately. When interviewing female candidates, consider including questions about their family background, marital status, or plans for children. I have had all my employees working from home since 2016, unlike the rest of the world in the past year. I always make an effort to understand their family situations as it can impact their work, whether it involves pregnancy or other family issues like relationships with spouses or in-laws.
All the best.
Regards,
TS
From India, Hyderabad
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Further to what Dinesh Divekar and Madhu have suggested, I recommend focusing on her depression and anxiety issues rather than her pregnancy. You could ask her to submit her resignation citing these reasons instead of terminating her. That is always a safer approach. Many employees become more productive once they have addressed their health issues. This lady might claim that the company terminated her unfairly once she overcomes this phase of life.
Regarding your statement, "I do not want to be mean and cruel," there are situations that require compassion and situations that call for logical thinking. It is crucial not to mix up these approaches as it can lead to improper actions. If this lady had been transparent in August 2021, perhaps she would have deserved some empathy and a compassionate approach.
You have not specified which month of her term she is currently in. If she was more than one month pregnant in August, there is a chance that she was aware of her pregnancy when you offered her the job, especially if the critical nature of the position was explained. In such cases, it is essential to proceed with necessary actions while considering legal implications, as suggested by Dinesh and Madhu.
Start the recruitment process for a replacement immediately. When interviewing female candidates, consider including questions about their family background, marital status, or plans for children. I have had all my employees working from home since 2016, unlike the rest of the world in the past year. I always make an effort to understand their family situations as it can impact their work, whether it involves pregnancy or other family issues like relationships with spouses or in-laws.
All the best.
Regards,
TS
From India, Hyderabad
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The poster seems to have raised the question from Canada, and if she were employed in Canada, the issues raised by her have to be in the backdrop of the labor law of Canada only. There is no use in answering in the context of Indian labor laws.
From India, Salem
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From India, Salem
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I have noticed that Umakanthan.
The most probable scenario seems to be: the Company is in Canada and has hired an Indian working from home in India - please see the references to salary figures in LPA. Such hiring is pretty common in the IT sector.
Notwithstanding the above, my focus was on the human nature and response perspective - there are many better experts in CiteHR to suggest on the legality issues than me. And I guess human nature would be by and large the same all over the globe, with minor differences based on the local culture.
Best regards,
TS
From India, Hyderabad
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The most probable scenario seems to be: the Company is in Canada and has hired an Indian working from home in India - please see the references to salary figures in LPA. Such hiring is pretty common in the IT sector.
Notwithstanding the above, my focus was on the human nature and response perspective - there are many better experts in CiteHR to suggest on the legality issues than me. And I guess human nature would be by and large the same all over the globe, with minor differences based on the local culture.
Best regards,
TS
From India, Hyderabad
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Thank you, TS, for correcting my mistake.
Whatever the hierarchical position of employment, an employee is an employee only, and the conditions of employment cannot be anti-humanitarian or inconsiderate just because he or she happens to be out of the purview of labor law. That's why certain labor laws like the Maternity Benefit Act, 1961, and the Payment of Gratuity Act, 1972 apply to all paid employees alike. At the same time, when the performance of the employee is not conducive to the purpose of his/her appointment, the hardships faced by the employer cannot be simply brushed aside on humanitarian grounds alone, and the employer cannot be found at fault if he tries for a decent and peaceful separation in a win-win atmosphere as suggested by all the learned people.
As rightly observed by Mr. Madhu, the discharge simpliciter clause in the contract of employment shall not be couched in language indicating a stigmatic connotation to the termination. This is the ratio decidendi of the Apex Court in several judgments, including the recent one in 2020, viz., Vijayakumaran.C.P.V v Central University of Kerala. Furthermore, now that the employer is aware that the employee is pregnant and her frequent sickness due to pregnancy would be a continual interruption to carrying out her job even while working from home (WFH). At this stage, it would be unlawful to terminate her services as per sec.12 (1) of the MB Act, 1961, even after a formal inquiry, and her maternity benefits cannot be normally deprived of as per the provisions of sec. 12(2)(a) if the Act is applicable to the establishment.
Therefore, it is better to initiate an open negotiation with her to resign with the employer's assurance of payment of her maternity benefits later and a waiver of the notice condition.
From India, Salem
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Whatever the hierarchical position of employment, an employee is an employee only, and the conditions of employment cannot be anti-humanitarian or inconsiderate just because he or she happens to be out of the purview of labor law. That's why certain labor laws like the Maternity Benefit Act, 1961, and the Payment of Gratuity Act, 1972 apply to all paid employees alike. At the same time, when the performance of the employee is not conducive to the purpose of his/her appointment, the hardships faced by the employer cannot be simply brushed aside on humanitarian grounds alone, and the employer cannot be found at fault if he tries for a decent and peaceful separation in a win-win atmosphere as suggested by all the learned people.
As rightly observed by Mr. Madhu, the discharge simpliciter clause in the contract of employment shall not be couched in language indicating a stigmatic connotation to the termination. This is the ratio decidendi of the Apex Court in several judgments, including the recent one in 2020, viz., Vijayakumaran.C.P.V v Central University of Kerala. Furthermore, now that the employer is aware that the employee is pregnant and her frequent sickness due to pregnancy would be a continual interruption to carrying out her job even while working from home (WFH). At this stage, it would be unlawful to terminate her services as per sec.12 (1) of the MB Act, 1961, even after a formal inquiry, and her maternity benefits cannot be normally deprived of as per the provisions of sec. 12(2)(a) if the Act is applicable to the establishment.
Therefore, it is better to initiate an open negotiation with her to resign with the employer's assurance of payment of her maternity benefits later and a waiver of the notice condition.
From India, Salem
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