Maternity Benefit, Indian legal framework
By Adv Sandigdha Mishra
advsandigdha@paydirtprofessionals.com
In order to protect the rights of women employees during pregnancy and after childbirth, Indian law makes it mandatory for most establishments to offer maternity benefits to women employees. Maternity benefit in India is mainly governed by the Maternity Benefit Act, 1961 that applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees’ State Insurance Act, 1948.
Remember that employers are required to inform women in writing and electronically about the maternity benefits available under the Maternity Benefit Act upon their joining the workforce.
Maternity Benefit is the paid leave given to all the working women. The duration of Maternity benefit or maternity leave will be 6 weeks to 30 weeks. This duration differs for different countries.
According to Maternity Benefit (Amendment) Act, 2017 female employees’ are mandatorily paid in the leave after giving birth. It also allows the mother to get some maternity benefit before the actual delivery.
The Act is applicable to every factory, mine, and plantation. It is also applicable to any shop or small scale industry those having 10 or more employees. One thing is mandatory that the woman must work for at least 80 days during their 12 months of work shift before the date of delivery.The Act is equally providing status to women who are recruited directly and also those who are recruited through any of the agencies.
The Act provides fully paid leave for 26 weeks. But, the period of leave after the second child will change to12 weeks. The maximum period of maternity benefit which is allowed before the delivery is 8 weeks. But, this time period will change to 6 weeks after the second child.
Shops or establishments with more than 50 employees are liable to provide the facility for children of the employees. Such facilities help the women for taking care of them.
Employers should have to notify all women employees about the benefits they are eligible for the Maternity Benefit Act. This notification should be given in writing as well as in electronic form.
The Maternity Benefit Act provides that a woman will be paid maternity benefit at the rate of her average daily wage in the three months preceding her maternity leave.
The Maternity Benefit Act originally provided maternity benefit of 12 weeks, out of which up to six weeks could be claimed before delivery. In 2017, as per the amendment to maternity act the period was extended to 26 weeks. Out of the 26 weeks, up to eight weeks can be claimed before delivery. However, you need not structure your leaves in this manner—you can instead take the entire 26 weeks of leave after the delivery. Also, these are maximum periods of claim and you can claim the benefit for a smaller period as well.
Mothers are entitled to visit the creches up to four times a day and to two nursing breaks per day in addition to any other breaks that are available as a matter of course, until the child attains the age of 15 months.
Employee rights
An employer cannot dismiss a woman for taking maternity leave and cannot serve a termination notice to a woman on maternity leave which expires before the maternity leave ends. Also, an employer can’t change the terms of service to the woman’s disadvantage during her maternity leave.
Further, maternity benefit and medical bonus will have to be paid to a woman who is discharged or dismissed during pregnancy unless it is for gross misconduct.
As per the 1961 maternity benefit law - 12"(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 communicate to the woman, deprive her of the maternity benefit or medical bonus or both."
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.
Cases for reference:-
1. Neera Mathur vs Life Insurance Corporation of India.
2. Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors.
3. K. Chandrika v. Indian Red Cross Society and Another.
Further, maternity benefit and medical bonus will have to be paid to a woman who is discharged or dismissed during pregnancy unless it is for gross misconduct.
As per the 1961 maternity benefit law - 12"(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 communicate to the woman, deprive her of the maternity benefit or medical bonus or both."
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.
Cases for reference:-
1. Neera Mathur vs Life Insurance Corporation of India.
2. Aarti Gupta (Mrs.) v. Rail India Technical and Economical Services Limited and Ors.
3. K. Chandrika v. Indian Red Cross Society and Another.
Other benefits
The law also allows employers to permit women employees to work from home in addition to the maternity benefit period if the nature of work allows that.
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