#UngenderLegalCell: 6 Tough Questions On Maternity Benefits, Childcare & POSH Act Answered

Last week, Ungender’s legal expert Suruchi Kumar offered free legal advice on issues of sexual harassment, women’s rights and the workplace, as part of our pro-bono efforts during the COVID-19 lockdown. Suruchi answered some complex questions and they ranged from maternity benefits, childcare facilities to transportation facilities for women working in night shifts. It’s important to revisit her answers to keep ourselves updated.

Q 1. My company transferred me from one city to another as a result of a complaint received against me. I was never told about the complaint or who made it. It’s been a year now. Is there anything that I can do?

A. In such a situation there is a breach of principles of natural justice. As a first step, any employer after receiving a complaint should always speak to the person against whom the complaint has come and allow them to present their side of the story. If the employee can be classified as a ‘workman’ under the labour laws – then such transfer can also be called an ‘unfair labour practice’ under the ID Act, and a recourse can be taken.

Q 2. What are my rights as a mother under the Maternity Benefits Act? Is my child supposed to be of a certain age for me to avail the benefits? Is this applicable to freelance work?

A. Maternity Benefit Act is a way to ease the financial burden on a pregnant female employee and give her leave to take care of her health pre-delivery and be with the child post delivery. Once the child is born and a woman returns to work, she will be given nursing breaks to take care of the child till they’re 15 months old.

Q 3. My company doesn’t have a crèche and when I asked them they said that I could find one, and they will pay for the days I used it if I can provide them with an invoice. Is that how the law works?

A. Since the time the Maternity Benefit Act got amended in 2017 to mandate employers to have creche facilities when they have 50 or more employees, this question has become a very important one. To answer in brief, the law is clear only in a few states. Karnataka and Maharashtra are the only states so far to have clarified under their laws that creche facilities need to be provided by the employer within their premises but a lot of companies are still not following this.

To ease up the confusion the Labour Ministry and Ministry of Women and Child Development came out with certain guidelines for creche facilities, where employees are responsible for the facilities of such creche and welfare of children of the employees. Since this law is only in two states and ministry documents are just guidelines, a lot of employers which cannot set up such facilities are sourcing them to external agencies. The employees in this case should check these facilities and see if they comply with guidelines.

Q 4. I was given an offer letter as part of campus hiring. We were told, if selected for an internship, one year down the line, a permanent job will be confirmed. I was the only woman in this group. Two months ago, I got engaged and will be getting married this December. I have been told that my appointment will not be confirmed. They say that it has got nothing to do with my engagement but I know it is. Can I do something?

A. This is a typical situation of discrimination in hiring between men and women. Many employers prefer to hire men as opposed to women, as they tend to take wedding leaves and maternity leaves. This situation has been addressed under the Equal Remuneration Act which prevents discrimination between men and women in hiring, promotion and transfers. As the querist has been assured of a job after completion of training she should approach the management first. However, if the management does not adhere to its own contractual commitment, a complaint of discrimination in hiring can be filed with the proper authorities under the Equal Remuneration Act.

Q 5. And post #MeToo a few managers have expressed fear of hiring women “in case they file a sexual harassment case” or “so, can we now not even pay a compliment?” Don’t these itself amount to discrimination and harassment?

A. These instances do amount to discrimination. If there is no prohibition under law to hire women and they are being interviewed for the same work and same position, there is no cause to hire only men.

Q 6. My company tells me that I can reimburse the money for my cab rides. But my roommate says that law requires them to provide me with transport with a guard. I asked my company, and they said the law is not clear on this so they are giving me reimbursement and I should be thankful.

A. If you are a woman employee working night shifts and the law applicable to your establishment requires a transport facility to be given by the company then a reimbursement is not sufficient as this does not provide or comply with security requirements. Law in many states, especially, Maharashtra and Karnataka is very clear that if a company has women employees working night shifts then it is required to give transportation to such employees after providing security, including background checks on the drivers. In places like Delhi and Gurgaon, the police has, in fact, issued notifications/ circulars applicable to BPOs/IT sector that all women employees working night shifts are to be provided secure company transportation for home-drop on a mandatory basis.

You can participate in the upcoming sessions by submitting your questions here.