Legal HR: Can you fire a pregnant woman employee
The judgment of Supreme Court in case of Neera Mathur vs Life Insurance Corporation of India1 had caused a paradigm shift in employer’s approach towards pregnant women employees. However, the issues relating to termination of employment of pregnant women are still prevalent. The purpose of this article is to discuss the legal position in this regard.
Maternity Benefit Act, 1961 (“Act”) governs the conditions of service of women employees on maternity leave. Maternity Benefit (Amendment) Act 2017 has not brought any change on the aspect of termination of a women employees’ services on account of her maternity status. The Act, as amended provides for rights of pregnant employees and attempts to ensure that such employees do not have to face any kind of discrimination during her pregnancy. One such obligation which has been set out is that the employer cannot terminate services of a woman employee who is on maternity leave. Section 12(1) of the Act states that 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.
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. Also, in the case of Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors2, 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.
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.
The proviso to Section 12 of the Act states 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 bonus or both. So, the employer can dismiss the woman employee even without paying the maternity benefit or bonus if it is proved that the pregnant woman has engaged in conduct which would amount to gross misconduct through written order issued to woman employee. However, it is necessary, at the same time that the opportunity to explain her position and stand against the charges the internal enquiry is completed in an impartial manner.
Though the Act does not define what constitutes gross misconduct but Section 28 of the Act empowers respective states to prescribe what constitutes gross misconduct. Accordingly, many states have defined constituents of gross misconduct under the Act. Wilful destruction of employer’s goods or properties, offenses involving moral turpitude and theft, fraud or dishonesty in connection with the employer’s business or property are some of the common factors constituting gross misconduct as provided in the rules prescribed by the states under the Act.
In the case of National Tobacco Co. of India Ltd. and Ors vs Fourth Industrial Tribunal and Ors3, it was held that gross misconduct by itself merits dismissal. If there is a finding that there has been a gross misconduct, then there is no scope for applying the principle of victimisation, because upon that finding the employer and/or the enquiring officer was entitled to come to the conclusion that the workman concerned should be dismissed. In such situation, the concerned woman employee may not be in a position to challenge an order of termination of service on grounds of arbitrariness.
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).
It may be advisable for the industry to act with caution when dealing with matters concerning potential exit of women employees. It must be ensured that any probable exit scenario is not vitiated by the intent or perception to push for such employee separation merely on account of such employee’s pregnancy or absence at work on account of maternity status.