A section of corporate India is consciously choosing gender-sensitive policies such as flexible hours and crèche services for working mothers. But, there are also companies where women still have to face discrimination and harassment when they announce that they are pregnant.
An advertising agency in Mumbai was served a legal notice in January for allegedly denying maternity leave to an employee and firing her instead.
The notice was sent on January 27, less than two months after Aarti Khatri Ningoo, a client servicing executive, was asked to leave her job at Eggfirst Advertising, a Goregaon-based company.
Ningoo was five months pregnant at that time and, she says, her maternity leave application had been ignored by the company heads since October. The company says Ningoo was asked to leave because of “performance deficiency” and “internal badmouthing.” She has now taken her case to the labour court in Mumbai.
Being fired from a job on account of pregnancy is illegal under the Maternity Benefit
Act. But it is more common than we realise and is symptomatic of a more pervasive discrimination against working mothers in Indian organisations.
Knowing Your Rights
The Maternity Benefit (Amendment) Act 2016, passed by the Rajya Sabha in August 2016, has also been passed by the Lok Sabha in March 2017.
Under the new Law, maternity leave is raised from earlier 12 weeks to 26 weeks. The prenatal leave is also extended from six to eight weeks. However, a woman with already two or more children is entitled to 12 weeks’ maternity leave. The prenatal leave in this case remains six weeks.
The Act further requires an employer to inform a woman worker of her rights under the Act at the time of her appointment. The information must be given in writing and in electronic form.
The Section 12 of the Act entails the following things: an employee who
is absent from work under provisions of the Act cannot be dismissed on account of that absence; if a woman is discharged during her pregnancy, she is still entitled to maternity benefit or medical bonus referred to Section 8 of the Act, unless the dismissal is for gross misconduct.
The maternity leave is awarded with full pay on completion of at least 80 days in an establishment in the 12 months prior to her expected date of delivery. The maternity benefit is awarded at the rate of the average daily wage for the period of a worker’s actual absence from work. Apart from 12 weeks of salary, a female worker is entitled to a medical bonus of 3,500 Indian rupees.
No Harmful Work
In accordance with the Maternity Benefits Act, a pregnant woman cannot, on a request made by her in this behalf, be required by her employer to assign any work (during 10 weeks before her expected delivery) which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. An employer is also obliged not to employ a woman during the six weeks following the day of her delivery, miscarriage or medical termination of pregnancy.
(S4 of the Maternity Benefits Act 1961
Protection from Dismissals
It is unlawful for an employer to discharge or dismiss a pregnant worker during or on account of absence due to pregnancy, delivery or any post-natal illness, or to give notice of discharge or dismissal, or to vary to her disadvantage any of the conditions of her service.
(S12 of the Maternity Benefits Act 1961)
Right to Return to Same Position
Employers are prohibited from varying a worker’s conditions of employment to her disadvantage while she is on maternity leave. It implies from Section 12 that a woman worker has the right to return to her same job/position after availing her maternity leave.
(S12 Maternity Benefits Act 1961)
Informing Your Employer
The Maternity Benefits Act is applicable to all working women, irrespective of the type of organisation they work in. However, a woman can only be eligible to claim maternity benefits if she has worked in the organisation for a minimum of 80 days before her due date.
Initially, it is all right to verbally inform your employer about your pregnancy. However, to officially claim the leave and other benefits, you must write a formal letter to the office. The letter should include how long you have worked for the company, your expected due date, and the starting and ending dates of your leave.
The date of submission of the written notice to the company will depend on company policy
. Some companies insist on submission before your delivery while others will allow you to do so after giving birth. Even if you forget to give a written notice, you are still entitled to all maternity benefits offered by your workplace.
As an employee, you have some responsibilities too. Firstly, you should know what the company policy is and what benefits you are entitled to, well in advance. This can avoid any misunderstandings when you apply for your leave later on. Secondly, give your notice letter well in advance. It gives your office time to find someone to do your work. It also gives you time to hand over your duties and minimising the possibility of work-related calls while you are on leave.
Despite the Act into force many Pregnant Women get a raw deal:
1.In Neera Mathur case
a woman who was on probation was dismissed from her employment when she was on her medical leave. The ground of termination given by the employer was that she deliberately tried to hide the fact that she was pregnant at the time of filling up of declaration form prior to being appointed. The Court not only directed the LIC to reinstate her but also held that collection of personal data relating to pregnancy, menstrual periods are violation of the right to the privacy
of the woman. The Court further observed that such personal data is collected to deny women the benefit of medical leave to which she is duly entitled to.
2.In the case of Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors, the employees’ contract was arbitrarily terminated when she sought to avail maternity leave. It was held by the Court that Section 12 of the Act underscores the independent and inflexible nature of the liability to mandate that no woman employee can be dismissed on account of her pregnancy. It is the right of the employee to get medical benefits since such grant of maternity benefit is according to the mandate of the law.
3.Section 12(2)(a) of the Act provides that the employment of a pregnant woman can be terminated if the employer provides her with the medical benefit and/or bonus prescribed under the Act which she would have been entitled to as if she had still been in employment. This may suggest that as long as the employer is paying the maternity benefits and/or bonus prescribed under the Act, there should be no legal repercussions if he terminates the employment during an employee’s leave. However, in the case of K. Chandrika v. Indian Red Cross Society and Another, it was held that the fact that she was given the medical benefits did not deprive her from getting reinstated with consequential benefits if the termination of employment was arbitrary and illegal as long as she is not gainfully employed by another establishment. It is important to note that the service of the petitioner was terminated just when she had proceeded on maternity leave.
4.A woman, in the third month of her pregnancy, was laid off by Verizon in Hyderabad, despite her pleas about how it would affect her financially.
Kavitha, a software tester with Verizon was asked to resign by the company’s HR and Delivery Head in a secluded meeting room. The HR personnel and Delivery Head, both men, refused to take into consideration the circumstances of Kavitha’s pregnancy, she alleged.
They also went on to suggest that the insurance policy would cover her financial requirements. And even when Kavitha broke down, it allegedly had no effect on the panel.
She has now approached the Labour Commission against the termination of her employment at Verizon.
5.In 2014, when Tata Consultancy Services (TCS) was conducting a mass layoff, a pregnant employee, Sasi Rekha, was also asked to leave.
The pregnant woman moved to the Madras High Court, saying that she was a ‘workman’ as defined under the Industrial Disputes Act 1947. She stated that TCS could not terminate her employment without following the due process as outlined in the Act. She had been given her notice on December 22, 2014 and her last day was to be on January 21, 2015.
In January 2015, the Madras HC, through an interim injunction, restrained TCS from relieving Sasi Rekha for a period of four weeks. While the next hearing in the matter was to take place in February, TCS withdrew the termination order issued to Sasi Rekha before that.
The company argued that she had not brought her pregnancy to their knowledge during the exit process. And the company, while disputing her claim that employees are ‘workmen’ under the Industrial Disputes Act, revoked her termination in line with the policy of not firing employees during their pregnancy.
Sasi Rekha’s counsel also told the media that since she was pregnant, her employment was protected under Section 12 of the Maternity Benefits Act.
Section 21 of the Act provides that if any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or terminates the employment of such woman during or on account of her absence from work, he shall be punishable with imprisonment which shall not be less than 3 (three) months but which may extend to 1 (one) year and with fine which shall not be less than INR 2,000 (Indian Rupees Two thousand) but which may extend to INR 5,000 (Indian Rupees Five thousand).
Despite the Act being in place, many pregnant women get a raw deal. This highlights how women in the organised sector are penalized time and again for their pregnancies.
And while many of these women have gone to court and won, the fact that they have had to turn to the justice system even as their employers blatantly violate a law is telling of how pregnant women are considered liabilities in the workforce.