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
Acknowledge(0)
Amend(0)
18Kindly restrict your answer to legality without considering what is ethical or unethical.
Regards,
From India, Delhi
Acknowledge(0)Amend(0)
In a recent judgment, the Supreme Court has ruled that an employee on a fixed-term contract shall be entitled to the entire 26 weeks of leave 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 the entitlement of leave, but since the fixed term for which she was hired has expired just after her leave started (eleven days after the start of leave), obviously, the contract of employment had come to an end after 11 days of starting the 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 a six-month 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 of service in these 12 months. Though many experts have a 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 of 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. 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
Acknowledge(0)Amend(0)
But there is a difference between the above case and the matter with you. The case of Dr. Kavita was that she had the entitlement of leave, but since the fixed term for which she was hired has expired just after her leave started (eleven days after the start of leave), obviously, the contract of employment had come to an end after 11 days of starting the 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 a six-month 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 of service in these 12 months. Though many experts have a 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 of 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. 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
Acknowledge(0)Amend(0)
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
Acknowledge(0)Amend(0)
From India, Mumbai
Acknowledge(0)Amend(0)
But 80 days is the service required before child birth or expected date of delivery and not for pregnancy.
From India, Kannur
Acknowledge(0)Amend(0)
From India, Kannur
Acknowledge(0)Amend(0)
As per the 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
Acknowledge(0)Amend(0)
From India, Bengaluru
Acknowledge(0)Amend(0)
@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. 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
Acknowledge(0)Amend(0)
Again, section 12(2)(a) of the Maternity Benefits Act prohibits 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
Acknowledge(0)Amend(0)
The flaw lies in the Act, the reason being beneficiaries suffer. The one who claims for benefits should know the eligibility. Further, why would the employer bear the cost without return from the employee? In the instant case, the employee declares her pregnancy within 30 days of her employment and claiming benefits under the Maternity Benefit Act is not a desirable case.
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
Acknowledge(0)Amend(0)
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
Acknowledge(0)Amend(0)
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 of contribution and that also in two consecutive contribution periods. That 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 is with the legislation, and it is unfortunate that this issue has not been addressed in the new labor codes, which remained a copy-paste of the original Acts!
From India, Kannur
Acknowledge(0)Amend(0)
Yes, the fault is with the legislation, and it is unfortunate that this issue has not been addressed in the new labor codes, which remained a copy-paste of the original Acts!
From India, Kannur
Acknowledge(0)Amend(0)
Dear Mr. Madhu,
In the beginning stage of the enacted labor laws, things remained good for at least 30-40 years. Thereafter, our legal institutions passed several orders analyzing different cases with their interpretations at different points in time. In the present day, all the laws enforced for labor welfare seem to have lost their existence.
In the present day, things are being managed while keeping aside the core values.
From India, Mumbai
Acknowledge(0)Amend(0)
In the beginning stage of the enacted labor laws, things remained good for at least 30-40 years. Thereafter, our legal institutions passed several orders analyzing different cases with their interpretations at different points in time. In the present day, all the laws enforced for labor welfare seem to have lost their existence.
In the present day, things are being managed while keeping aside the core values.
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Mohanty, you said it. We have lots of interpretations on the same section of a particular Act that remain 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 the 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 a Copy and Paste of the current Acts.
From India, Kannur
Acknowledge(0)Amend(0)
From India, Kannur
Acknowledge(0)Amend(0)Looking for something specific? - Join & Be Part Of Our Community and get connected with the right people who can help. Our AI-powered platform provides real-time fact-checking, peer-reviewed insights, and a vast historical knowledge base to support your search.