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Unlawful to dismiss or discharge a woman anytime during pregnancy
05-May-2023 (In Labour & Service Law)
An employee had not disclosed her pregnancy to us before joining and after' 15 day's of joining she informed us that she is 1 month pregnant. Initially she said she will committee to her work later but we saw that she had not putting her efforts as expected and in next month's she approached us for work from home option till her delivery which is not possible for manager to give since still KT is going on and her profile needs team working and guidance as she is slow learner. Just wanted to check below clause is valid "the Maternity Benefits Act, 1961, it will be unlawful to discharge or dismiss a woman at anytime during her pregnancy. However, the woman should have worked for at least 80 days prior to her pregnancy with the employer." She has not completed 80 days in company but now threatening that company has asked for termination which is not the case. we had asked her to first take care of her health and baby as she can't seat for 9 hours in office , Which is required for the job.
This is my response to you:
1. According to section 5 and sub-section 2 of the Act, it says that No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery;
2. Since you claim that 80 days are not complete, therefore you can tell her through formal communications that she is not entitled to maternity benefits. But since you have not yet dismissed her therefore she will complete her 80 days soon and can avail the benefits;
3. Also, you can allege that you had no idea about her pregnancy and she kept it a secret from you. This itself amounts to fraud and misrepresenation;
4. One of the recent judgments of the Bombay High Court, the court held this: The judges also said that the women must make an effort not to misuse this benefit and rather regulate it themselves. The judges said, “The employee will also have to look from the angle of running the administration and the woman employees may not claim such privilege for such entire period of pregnancy, but necessarily have to regulate themselves in accordance with the provisions of the Maternity Act.”
1. According to section 5 and sub-section 2 of the Act, it says that No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery;
2. Since you claim that 80 days are not complete, therefore you can tell her through formal communications that she is not entitled to maternity benefits. But since you have not yet dismissed her therefore she will complete her 80 days soon and can avail the benefits;
3. Also, you can allege that you had no idea about her pregnancy and she kept it a secret from you. This itself amounts to fraud and misrepresenation;
4. One of the recent judgments of the Bombay High Court, the court held this: The judges also said that the women must make an effort not to misuse this benefit and rather regulate it themselves. The judges said, “The employee will also have to look from the angle of running the administration and the woman employees may not claim such privilege for such entire period of pregnancy, but necessarily have to regulate themselves in accordance with the provisions of the Maternity Act.”
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Adv. Gowaal Padavi
Mumbai | 500+ Answers
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