Longer maternity leave may prompt companies to hire fewer women – and the law needs to prevent that

Almost 69 years after Independence, the upper house of the Indian Parliament last week approved a crucial amendment to the Maternity Benefit Act that increases maternity leave for working women in the country from three months to about six-and-a-half months.

The reform was much-needed, because the prevailing law on maternity welfare in India is the 55-year-old Maternity Benefit Act of 1961. It essentially contains welfare provision for working women that, apart from maternity leave, include nursing breaks, time off from work for miscarriages and tubectomies and even a limited monetary benefit for those who cannot afford healthcare under provisions of the Employee’s State Insurance Scheme. The Act covers women working in shops, factories, mines, factories, plantations and in the government, among other professions.

Among other things, the Act was criticised for the inadequate maternity leave it guaranteed women (12 weeks in most cases) and over non-enforcement of its provisions. While many female government employees do get about six months of maternity leave at present, the private sector was therefore only legally bound to provide three months paid leave for new mothers.

The amendments

At the outset, the prime minister and his cabinet must be congratulated for endorsing this long-overdue welfare measure for women.

The most welcome amendment in the new bill is the increase in duration of paid leave to new mothers to 26 weeks. The Act covers all women working in commercial, industrial or agricultural establishments that employ 10 or more people.

The bill, additionally, makes it mandatory for employers to provide creche facilities where the number of workers is 50 or more. There is also an enabling proposal that encourages employers for allowing new mothers to work from home, wherever possible.

Crying need for better benefits

The percentage of women working outside of the home – be it in the rural sector or in organised sectors of urban India – is abysmal. Based on the uniform definition of workers in the 2011 census, the female work participation rate stands at 25.51%, compared to 53.26% for males. The female work participation rate in the organised urban sector was lower, at 15.44% – and this is the sector that is covered under the Act.

It is no secret that in patriarchy, social mores and lack of education stifle women’s economic empowerment, but it is also clear that poor maternity leave policies are one of the primary reasons that many working women – who have often overcome the hurdles posed by patriarchal mindsets – quitting their jobs after motherhood. More unnerving is the fact that most of these educated and skilled workers never come back to employment.

A report by the Indian Women's Network of the Confederation of Indian Industry said that an about 37% of working women in India opted out of their jobs mid-career owing to maternity or childcare issues. Social media and parenting blogs are rife with personal accounts of mothers who had held lucrative positions in private companies and were forced to leave by unsupportive human resource departments, bad policies and horrible bosses.

This in spite of the fact that poor maternity laws do not impact women and children alone – they have negative consequences for employers. When trained/skilled workers leave, both the efficiency and the profitability of the enterprise declines, which, when it happens en masse, has a negative effect on the GDP of the country.

What are the consequences?

In such a scenario, the amendment to the Maternity Benefit Act is an excellent example of affirmative legal reform, but is dogged by fears of poor enforcement.

Since these obligations are imposed on employers, what is to happen in the event of non-compliance? Section 21 of the Act enumerates punishment for contravention of the terms by an employer of up to one year imprisonment and/or a small fine. It also provides for the appointment of inspectors, who can visit establishments, inspect their registers and call for an inquiry in case of a perceived violation.

But what keeps a large multi-national corporation from bribing an inspector to cover up a violation? Who in the company will pay the price for a violation under the Act? What is to stop them from committing the same violation again? Legislators need to re-examine the existing punishments under the Act and impose more duties on employers for which they can be held accountable.

Firing and no hiring

Section 12 of the Maternity Benefit Act says that an employer who dismisses a pregnant employee on grounds of her absence from work due to health-related issues is liable for punishment – but no employer actually cites this as a reason for firing a pregnant employee. A recent analysis of the Maternity Benefits Act by the National Commission of Women showed that discrimination against pregnant women was widely prevalent in the corporate sector.

Pregnant women workers often report getting unexpected poor performance reviews or termination letters and are called for human resources counseling for a variety of fabricated reasons, including bad attitude. In such cases, if not terminated, women workers often have no choice but to resign without maternity benefits or the hope of finding a new job during their pregnancy. This form of grave workplace harassment must be addressed by the government or judiciary as soon as possible.

Another apprehension is that the new law, owing to the increase in maternity leave, could have an adverse effect on the hiring of women. Many organisations may internally freeze of women in their establishments. Whilst this is naturally illegal, there is little a job applicant can do in court to prove discrimination. Litigation in India is often a notoriously lengthy and expensive process – something that many women workers will not be able to afford.

Leveling the field

One solution to this is to introduce similar leave for new fathers as well.

“Firstly, it is a huge encouragement for working women in the organised sectors to strike a work-life balance and continue with their careers after having children,” said National Commission for Women chairperson Lalitha Kumaramangalam. “I hope this bill will also help change the perception that women alone are responsible for raising children. We need to promote ‘shared responsibility’ so that the fathers can also contribute and alleviate the burden on women.”

Perhaps once this concept of shared responsibility is realised, the Act could formally introduce paternity leave in India. This will go a long way in redressing the balance and we can hope to see more women making it to the top and holding leadership roles.

The writer is a lawyer and consultant to several individuals and organizations on sexual harassment law and labour and welfare legislations. She is a graduate of the ILS Law College, Pune and of the University of Warwick, Coventry, UK.