You cannot be dismissed or fired by your employer during or due to your maternity leave. (( Section 12(1), The Maternity Benefit Act, 1961.)) Keep in mind:
- During your maternity leave, your employer cannot change your condition of work to your disadvantage. For example, your employer cannot demote you at work just because you took maternity leave.
- If you are fired or dismissed during your pregnancy, you are eligible to receive maternity benefit or medical bonus.
- Your employer cannot cut your salary based on the fact that you requested and did non-strenuous work during your pregnancy. Even for reasons such as taking nursing breaks, your employer cannot cut your salary. (( Section 13(b), The Maternity Benefit Act, 1961.))
You can only be dismissed or dis-entitled to your maternity benefit in cases of gross misconduct. (( Proviso, Section 12(2)(a), The Maternity Benefit Act, 1961.)) Gross misconduct means deliberately destroying an employers’ property, assaulting other employees, fraud concerning the employers’ work, etc. (( Section 8.The Maternity Benefit (Mines and Circus) Rules, 1963))
The law does not have a single punishment for all cases of Sexual Harassment at the workplace. Instead, the Committee investigating will recommend that the victim‘s employer act according to the service rules of their workplace, if it has them(( Section 13(3)(i), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). If you have an employee handbook, please refer to that to see how your employer punishes sexual harassment. If the workplace does not have service rules, then the Committee will recommend that the District Officer take action. As punishment, an offender may(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)):
- Have to give a written apology
- Be denied a raise/promotion/increment
- Have to do community service
- Be given a warning or censure
- Lose their job
- Have to get counselling
Whether or not the workplace has service rules, the Committee can also recommend that the employer take a certain amount from the offender’s salary/wages so that compensation can be paid to the woman who was harassed. If the employer cannot take money from the offender’s salary because they are not working or have left work, the Committee can order the offender to pay the victim directly. If the offender does not pay the compensation, then the Committee can ask the District Officer to get the money from the offender(( Section 13(3)(ii), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).
An employer has the duty to pay maternity benefit even in case the woman dies as a result of the pregnancy. If the woman dies before receiving the maternity benefit or amount, the employer shall pay the amount to the person nominated by the woman in the notice given by her. (( Section 7, The Maternity Benefit Act, 1961.)) The amount payable depends on the following:
| Situation |
Duty of Employer |
| If a woman dies during the period of her maternity leave. (( Proviso (2), Section 5(3), The Maternity Benefit Act, 1961.)) |
The employer needs to pay the maternity benefit only for the days up to and including the day of her death. |
| If a woman dies during or following her delivery but has given birth to her child. |
The employer shall be liable to pay the maternity benefit for that entire period. |
| If the child also dies during the said period. (( Proviso (3), Section 5(3), The Maternity Benefit Act, 1961.)) |
The employer is liable to pay the maternity benefit until the date the child passes away, including the date of the death of the child. |
As a victim, you have a right to keep your complaint and the things that happen after it private. The law guarantees that the following information is private:
- Your identity and address
- The identity and address of the person you accused, as well as the witnesses
- Information about the conciliation (see what this means in the Glossary) or inquiry being made by the committee
- Recommendations of the Internal Committee or the Local Committee
- Action taken by the employer or District Officer
All of the above information cannot be published, communicated, or made known to the public, press, or media in any way(( Section 16, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) . If any person who is entrusted to handle the complaint, inquiry or recommendations, makes the aforementioned information public, he will be punished in accordance with the service rules of the organization. (( Section 17, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
Other than the maternity pay and leave, women are entitled to other benefits. These benefits such as nursing breaks and creche facilities allow women to make an easier transition back into work after their maternity leave.
Nursing breaks
If you return to work after your delivery, you can take 2 breaks of 15 minutes each daily (( Section 6, The Maternity Benefit Act, 1961.)). You can nurse your child and take nursing breaks till the child is 15 months old. (( Section 11, The Maternity Benefit Act, 1961))
Creche Facility
Every establishment having fifty or more employees shall have a creche facility. (( Section 11A, The Maternity Benefit (Amendment) Act, 2017)) You can visit the creche 4 times in a day as per the law. (( Section 6, The Maternity Benefit (Mines and Circus) Rules, 1963.)) You can take an extra time of 5-15 minutes. This includes the time to and from the:
- Creche (a nursery where babies and young children are cared for during the working day) or
- Any other place where the children are being taken care of.
The Ministry of Women and Child Development issued guidelines for setting up and running creches, which prescribe standards that creches should adhere to. (( National Minimum Guidelines for Setting Up and Running Crèches under Maternity Benefit Act 2017, https://wcd.nic.in/sites/default/files/National%20Minimum%20Guidelines.pdf)) The guidelines state that there should be one crèche for every 30 children, which should be extended to any employee’s child between the age group of 6 months to 6 years. The location of the crèche facility should be at the workplace, or within 500 meters from the workplace.
Under the law, an employer has to take certain steps to create a safe work environment for women.
Women in the workplace should feel safe from sexual harassment from co-workers as well as others who might just be visiting the workplace. It’s important for employers to display the sexual harassment policy of the company where it can be seen. They also must display the order that sets up the Internal Committee so employees, as well as visitors to the workplace, can see it.
Employers must(( Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.))
- Create and put forward a detailed sexual harassment policy
- Make sure employees are aware of the issue of sexual harassment
- Set up committees in the workplace that women workers can turn to if they have been sexually harassed
- Make sure committees are well-trained and well-staffed
- Prepare a yearly report and turn it over to the state government
- The District Officer will also appoint a Nodal Officer who can receive complaints at a local level(( Section 6(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).
If your employer has withheld any payment or maternity benefit from you or has dismissed you on account of your maternity leave, then you can approach the following authorities:
Inspector
You can approach the inspector to make a complaint. The inspector may make an inquiry on his own or after receiving a complaint, and pass orders based on the case. (( Section 17(1) and Section 17(2), The Maternity Benefit Act, 1961.)) Commonly, the inspectors appointed under this law are labour regional commissioners. To know which officers have been designated as inspectors, click here.
You can appeal the decision of the inspector to the Labour Court. You should file the appeal within 30 days from the date on which the decision is communicated to you. (( Section 17(3), The Maternity Benefit Act, 1961.)) However, if you do not file an appeal then the decision of the inspector is final. (( Section 17(4), The Maternity Benefit Act, 1961.)) You can request the advice of a lawyer for the same.
National and State Commissions for Women
The National Commission for Women (NCW) is a national-level government organization that is empowered to investigate complaints related to issues faced by women. The NCW will help you by:
- Monitoring and expediting the investigations being led by the police.
- Providing counselling or a hearing before the NCW. This is done to resolve disputes between the two parties.
You can get in touch with them by either calling the helpline number 1091, or sending an email to ncw@nic.in, or filing an online complaint. Further, you can also approach the State Commission of Women situated in your state, and ask them for help.
Workplaces with more than 10 employees are required to set up a committee that specifically handles cases of Sexual Harassment. This is known as the Internal Committee. It must have(( Section 4(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):
- A presiding officer, who is a woman employed at a senior level
- Three students, if the matter involves students
- One member from a non-government organisation or association committed to the cause of women, or a person familiar with sexual harassment issues. This member will be paid.
- Women as at least half of its members
- No person in senior administrative positions as a member such as Vice-chancellor, Registrar, Dean, or head of department
- A three-year term for members. Higher education institutions may also employ a system where one-third of the members change every year.
If the presiding officer acts in violation of their powers, they will be removed and a new nomination will take place((Section 4(5), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
The Internal Committee has to follow the regulations for taking complaints and making inquiries in a reasonable amount of time. The company or institution has to give the Internal Complaints Committee the things they need to make inquiries.
Proof of a pregnancy, miscarriage, abortion or tubectomy operation is necessary if you want to claim maternity benefits. You can prove the fact that you are pregnant, had a miscarriage, abortion, tubectomy operation or suffered an illness arising out of these procedures if you produce a certificate to that effect from any of the following(( Section 4, The Maternity Benefit (Mines and Circus) Rules, 1963)):
- Registered Medical Practitioner
- A Medical Officer of a regional hospital or a dispensary set up under the Coal Mines Welfare Organisation
- Medical Officer of a Mines Board where the mine is situated.
The fact that a woman has been confined can also be proved by the production of a certified extract from a birth register or a certificate signed by a registered midwife. Additionally, a certificate signed by a registered midwife also proves miscarriage. The death of a woman can be proved by a certified extract from a death register.
False complaints made on purpose or fake documents given to the committee are taken very seriously. If a victim or someone acting for them does either of these things, they could be punished based on the service rules of the workplace. If there are no service rules, the action taken against them can be decided by the Committee(( Section 14(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013)). As punishment they may(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)):
- Have to give a written apology
- Be given a warning or censure
- Not be given a promotion
- Not be given an increment
- Lose their job
- Have to have a counselling session
- Have to do community service
Just because a victim is unable to provide enough proof to the Committee, it does not always make her complaint false(( Section 14(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). The Committee will have to find out if she made a wrong complaint on purpose.
For example, if Isha makes a complaint against Rohit but there are no witnesses, documents, or anything at all that shows there was sexual harassment, her complaint will not be seen as false. But, if Isha wrote an email to a friend telling them she was lying about the harassment happening, her complaint could be seen as malicious or false.
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