Analysis: Women Working On Contract Deserve Maternity Benefits Too

In the last few years, courts across India have held in various judgments that maternity leave and its consequential benefits should be extended to contractual employees.

Data shows that while 45% of India's graduates are women, just about 10% of educated women in the country pursue long-term careers. Data from the International Labour Organisation (ILO) states that the employability gender gap in India is 50.9%, with only 19.2% of women in the labour force compared to 70.1% of men. A significant number of women, particularly in contractual jobs, leave the workforce, often never to rejoin, because they don't get maternity leave. Around 70-80% of caregiving responsibilities in India are shouldered by women, while the male participation rate in the workforce stands at 80%. 

Perhaps, keeping all this in mind, the Delhi High Court in an order on Thursday said the nature of a woman's employment - permanent, contractual, or ad-hoc - must not come in the way of her receiving maternity benefits, because those are a fundamental and integral part of her identity and dignity. This is something that all employers need to take note of.

The court said nature certainly does not discriminate on the kind of employment when a woman decides to have a child. In this case, the court was hearing a petition filed by a woman lawyer who was denied maternity leave by the Delhi State Legal Services Authority (DSLSA). The woman was an empanelled lawyer, not a regular employee, which is why the authority had argued that she was not eligible for maternity leave. The court rejected that argument and said she had asked for "nothing extraordinary or outrageous", and to stand in the way of a woman's maternity rights was in violation of the fundamental rights granted by the Constitution.

The Indian Maternity Benefit Act of 1961 stipulates that new mothers are entitled to take six months or 26 weeks of paid leave for their first two children. Additional benefits include daycare facilities, a non-discriminatory performance appraisal system and work-from-home policies. The Maternity Benefit (Amendment) Bill, passed by parliament in 2017, entitles women to paid maternity leave of 26 weeks, up from the earlier 12 weeks.

What is important is that courts have been speaking about the need for a positive change of perspective, along with a more adaptive approach by employers, in granting maternity benefits.

For instance, last week, the Supreme Court held maternity benefits have to be granted even if the period of benefit overshoots the term of contractual employment. This happened when the court was hearing the petition of a doctor who denied maternity benefits because her contract expired during her maternity leave.

Two years ago, the Karnataka High Court reprimanded the state government for terminating a woman on contract because she requested maternity leave. The government observed it was disappointing that the power to make such decisions rested with men who were so insensitive. 

Less than 20% of India's women work at paid jobs and the female workforce participation has been declining in the country. This is why it is important for the government to work with employers and employee unions and welfare bodies - to foster a supportive environment with adequate facilities for childcare, and even counselling for women joining work after a maternity break.

Experts also stress the need to revisit the 100% employer-funded model of maternity leave. They question whether the country is ready for gender-neutral leave, and even pull up companies who discriminate against hiring women. A good sign is that courts have already started talking about the importance of paternity leave, and showing that bringing up a child is not the mother's job alone. Some suggest the cost of the shared parental leave should be borne by the employers of the couple, not just the employers of the mother, while others feel that governments must also look at providing support for parental leave, besides pushing for the need to have a re-look at social norms around childcare.

(Vasudha Venugopal is Editor, Politics at NDTV)

Disclaimer: These are the personal opinions of the author.