Pregnancy discrimination
Pankaj R
(Querist) 13 April 2013
This query is : Resolved
My wife communicated to the company that she's pregnant. The company suddenly started questioning her performance on false grounds and coaxed her into going on leave without pay from Feb '13 under the pretext of protecting her from termination. They assured that if she goes on leave without pay for 4 months. She will get bonus in may and maternity benefits for june, july and august. But now they have given her a poor rating and refused to give bonus. She has enough proof to contest the rating, but they re not responding. Can they use the poor rating to deny maternity benefits later on? Can this be treated as a case of discrimination/harassment and what is the best way to contest this?
Raj Kumar Makkad
(Expert) 13 April 2013
Nothing can be opined without coming to know the policy in writing of the company. It shall be better to avail the professional services of a local lawyer and follow his advice.
Vidhi Joshi
(Expert) 13 April 2013
Company can't be discriminatory and thats completely illegal, she is legally entitled to take leave of six weeks before and six weeks after pregnancy (total 12 weeks), alongwith that one extra month in case of extra rest if needed.
Pls refer Maternity Benefit Act,1961.
R.K Nanda
(Expert) 13 April 2013
contact local lawyer.
ajay sethi
(Expert) 13 April 2013
agree with clone_ panvel
Pankaj R
(Querist) 13 April 2013
Hello,
Thanks a lot for your responses. I just talked to a local lawyer and he said that this can be contested. He also mentioned that the Act has been amended to provide six months of leave. Is this applicable to private ltd IT companies? Also could someone throw a light on the clause in the act which says benefits can be denied on basis on Gross Misconduct. Can a poor performance rating be used as an excuse here? Thanks again for your help.
Devajyoti Barman
(Expert) 13 April 2013
Yes it is applicable to Private Company as well.
Advocate M.Bhadra
(Expert) 13 April 2013
MATERNITY BENEFIT ACT 1961
Leave for illness arising out of pregnancy, delivery, premature birth of child, 3[miscarriage, medical termination of pregnancy or tubectomy operation].-A woman suffering from illness arising out of pregnancy, delivery; premature birth of child 4 [ miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.
Nursing breaks.-Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.
Dismissal during absence of pregnancy.-(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:
Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.
4[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]
Kumar Doab
(Expert) 13 April 2013
Learned experts/members have given valuable advice. Kindly follow it.
The conduct of the company and its line management/HR is perturbing.
The lady may obtain printed version of leave rules, HR policy, appraisal-ratings-matrix-scale-performance Vs target data-copy of filled in and signed appraisal forms of the company vide which poor ratings has been given and escalate to hierarchy in the company as per escalation matrix, for relief.
You have mentioned that lady has enough proof to contest the rating.
If the data and record shows that she has been given poor rating intentionally she should seek relief.
If she is able to prove that she has been given poor rating intentionally to indiscriminate for reporting pregnancy and asking for leave due to pregnancy the line managers/HR might be in trouble, and your lawyer may succeed in teaching the line managers/HR………………… lesson sufficient for one life time.
Lady should escalate that she was forced to apply for leave on LOP.
The maximum period for which any woman shall be entitled to maternity benefit shall be 12 weeks of which not more than 6 weeks shall precede the date of her expected delivery.
A woman entitled to maternity benefit under the Act shall also be entitled to receive from her employer a medical bonus of 3500 rupees, if no pre-natal confinement and postnatal care is provided for by the employer free of charge. The medical bonus shall be paid along with the second installment of the maternity benefit. {Section 8 & Rule 5}
The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman on production of proof that the woman is pregnant and the amount due for the subsequent period shall be paid to the woman within 48 hours of production of proof that the woman has been delivered of a child. {Section 6}
A pregnant woman can also request her employer not to give her any work which is of an arduous nature or which involves long hours of standing, etc. during the period of one month immediately preceding the period of six weeks, before the date of her expected delivery or any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence, under the Act. On such a request being made by her, the employer shall not give her such work during such period. {Section 4}
A woman suffering from illness arising out of pregnancy delivery, premature birth of child or miscarriage shall be entitled, in addition to the period of absence allowed to her under the provisions of the Act, to leave with wages at the rate of maternity benefit for a maximum period of one month. {Section 10}
She may avail this one month leave, by enclosing prescription and medical certificate of the doctor certifying she needs rest for sickness arising out of pregnancy/delivery.
See {Section 21} on provisions of penalty and punishment.
Post leave period if medical issues/complications are due to pregnancy/delivery and the employee has been submitting Doctor’s Rx/advice for seeking leave for treatment of complications arising out of pregnancy/delivery or to meet the family obligations post delivery, the condition of the lady may be just and justified for extended leave even if unpaid.
Female anatomy is complex and a lady risks her life while giving birth to a child.
The effects on the health can be far reaching and in case of some ladies more time may be required to return to normalcy. A small mistake can adversely affect the health of the female may even render her unable to reproduce later.
While employer may insist that the lady may resume duties at the earliest the lady may feel that her body does not allow it to join now and she needs some more time.
United Nations adopted the "Convention on the Elimination of all
Forms of Discrimination against Women". Article 11 of the Convention provides as under: "Article 11
1. States/parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to work as an inalienable right of all human beings:
(f) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
(c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life
These are cited by and referred to in judgments by courts of Law e.g.
Madras High Court, Tmt.K.Geetha vs The Director Of Municipal ... on 19 December, 2011, DATED: 19.12.2011
And
Madras High Court, L.Kannaki vs The Secretary To Government on 20 December, 2011
DATED: 20.12.2011
There might be other court judgments covering finer points as mentioned in your post as well.
Kindly proceed as deemed fit at your end.
Dr V. Nageswara Rao
(Expert) 13 April 2013
Look up Air India v. Nargis Mirza (AIR 1981 SC 1829),Municipal Corporation of Delhi v. Female Workers (Muster Roll) (AIR 2000 SC 1274),Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh (AIR 1992 SC 1695),
Raj Kumar Makkad
(Expert) 13 April 2013
The basic question still remains unanswered whether the company has framed its own rules or not.
Dr V. Nageswara Rao
(Expert) 14 April 2013
1. If the company has framed any rules that put a pregnant employee at a disadvantage,the rules are liable to be struck down.
2. If the company has not framed rules granting maternity benifits, that itself is wrong, and their actions can be challenged in a court.
