Home Featured Student Assignments (LawSikho) Analysis of current legal framework of paternity leaves in India

Featured Student Assignments (LawSikho)

Analysis of current legal framework of paternity leaves in India

April 8, 2021

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This article has been written by Shraddha Vasanth, pursuing a Diploma in Business Laws for In-House Counsels from LawSikho.

Table of Contents

Introduction

The Maternity Benefit Act, 1961 enhanced the leave available to new mothers from 15 to 26 weeks. While this provided the much-needed benefit to new mothers and gave them enough time to spend with their new-borns, a need was still felt that it doesn’t do much to bridge the gender gap when it came to fathers. A more holistic approach was required to address this gap and the changing roles and responsibilities of mothers, fathers and both of them together as a family in bringing up their child. It was felt that society and corporations had to play a key role in enabling the ecosystem to create this parity. The answer can be traced to ‘Paternity Leaves.’

With the opening up of the Indian economy, there was an infusion of foreign capital and with that, there has been an influx of global ideas, culture and best practices into India. This has brought in concepts and practices of paternity leave followed in different countries. Without any specific law to deal with paternity leaves in India, many companies are influenced by the policies of foreign countries and companies.

This article aims to highlight the legal provisions regarding paternity leaves and its applicability to foreign companies in India.

Introduction of paternity leaves – need and importance

Paternity leave is a period of paid leave/ absence from work granted to the male employee either immediately before or sometime after the birth of the baby. The traditional patriarchal system has defined, in clear terms, the role of mothers as caregivers and fathers as providers of the family. This restricts women from taking up professional commitments after having children. And also, it restricts the role of the father in the family commitments and in bringing up children.

However, today’s society is changing fast and this change has brought about the migration of people to different cities for better job opportunities and nuclear families, which has, in turn, necessitated a support system for new mothers/ parents to raise children while maintaining a successful career trajectory. The provision of ample paternity leaves is a small step towards creating this ecosystem.

The Maternity and Paternity Leave Report published by the International Labour Organisation quoted “By drawing fathers into the daily realities of childcare, free of workplace constraints, extended time off provides the space necessary for fathers to develop the parenting skills and sense of responsibility that then allows them to be active co-parents rather than helpers to their female partners.”

However, the ILO does not prescribe any specific duration of paternity leave.

Some of the societal changes that have necessitated the provision of paternity or parental benefits include the following:

Increasing the number of nuclear families implies there’s lesser support for taking care of a child unlike in the joint family system.

A lot more women are working and over the years, many women have acquired roles in the middle and higher-level positions.

The COVID-19 pandemic has led to work from home options for most people; however, this also means that there is less time to spend with the family/ new-born.

Moreover, there has been a change in the mindset of men and a lot of them now share equal responsibilities at home as well.

Provision of paternity benefits also recognises and emphasises the unpaid domestic care work performed by women from all strata of the society.

Legal provisions governing paternity leave in India

There is no specific legislation in India that governs paternity leaves in India. Nevertheless, the Central Civil Services (Leave) Rules, 1972 vide Rule 43-A provides for the grant of paternity leave to the male employee. However, these rules apply only to Union Government employees. Rule 43-A provides paternity leave for a period of 15 days during the confinement of the wife for childbirth. Such leave can be availed up to 15 days before the birth of the child or anytime during 6 months following childbirth. If the leave is not availed during this period, it lapses. Moreover, this benefit is provided for the first 2 children of the male employee; and also, to the employee adopting a child younger than 12 months. The salary payable during such paternity leave is equal to the pay last drawn immediately before proceeding for leave.

Apart from the above-mentioned rules, the Paternity Benefit Bill, 2017 (“the Bill”) was tabled before Parliament. However, it is yet to take effect.

Applicability of paternity leaves

The Bill is applicable to the whole of India; and to:

All establishments being a factory, mine or plantation, including government employees.

All shops and establishments covered under the Shops and Establishments laws prevailing in the respective states.

All self-employed persons and establishments in the unorganised sector, where there are less than 10 employees.

Key provisions of the Bill

Some of the key provisions of the Bill have been discussed as follows:

The Bill seeks to provide equal benefits to both the parents. Apart from providing a paternity leave of up to 15 days, extendable to 3 months for new fathers, the Bill also introduces the concept of parental leave in India.

The Bill provides paternity benefit in the case of biological as well as adopted children.

Paternity leave of 15 days has been provided, of which, a maximum of 7 days may be availed before the date of expected delivery. Such leave is valid for a period of 3 months from the date of delivery of the child.

The benefit is provided at a rate of the average daily wage for the period of actual absence.

The Bill also proposes the establishment of the ‘Parental Benefit Scheme’, to be funded by the employers and the government, from which such benefits shall be provided.

Is there any distinction between Indian and Foreign employers in the Bill?

Clause 2(e) of the Bill defines the term “employees” to mean persons appointed by the Government or head of the department (in case of government companies), chief executive officer or any person appointed by the local authority (in case of establishments under the local authority), and manager, managing director, managing agent, etc. (in case of other cases)

Clause 2(f) defines the term “establishment”, which includes factories, mines, plantations, establishments where persons are employed for exhibition of equestrian, acrobatic and other performances, shops and establishments and self-employed persons as well as establishments in the unorganised sector.

The Bill thus does not make any distinction between foreign and Indian entities/ companies and it applies to foreign companies operating in India.

Is it legal to not allow paternity leaves for fathers when working with foreign employers?

So, coming to the question as to whether it is legal to not allow paternity leaves when working with foreign employers. Given that the bill is not implemented and passed by the legislature yet and the Civil Service rules apply only to Central Government employees, it would not be wrong to say that it is considered as legal even for companies that do not have paternity leave policies, whether Indian or foreign employers.

Existing policies with respect to paternity leave in India and globally

India is one of the several countries in the world that offers no paternity benefit to its male employees. Here is a list of some countries that provide the best paternal and/ or parental leaves in the world:

Countries	Paternity/ Maternity/ Parental leave
Finland	7 months of paid parental leave to both parents
Sweden	480 days of paid leave that can be split between both parents; provided that each parent avails at least 90 days of leave
Norway	46 weeks at full salary or 56 weeks at 80% pay
Germany	Father or mother can take up to 52 weeks of parental leave with a minimum of 2 months for each parent. Leave is extendable up to 60 weeks if both parents avail 2 months
Iceland	6 months at 80% of pay, of which 3 months are mandatory
Spain	30 days of paternity leave
Japan	6 months

How helpful are the current policies in India?

Since the paternity leave policies are not specifically regulated, it is up to the companies/ establishments concerned to provide these benefits. While some companies have willingly adopted these policies and provide benefits on par with many foreign countries, some companies are still far behind. Hence, in India, paternity leave ranges from 5 days to 6-8 months. It can be seen from the below table that foreign companies/ multinational companies provide better paternity benefits in India.

Companies	Paternity/ Parental leave
SAS India	2 weeks paternity leave
Inter Globe Enterprises	5 days paternity leave, to be availed within 30 days of childbirth
Volvo Group	3 calendar weeks paternity leave
Tata Starbucks	15 working days’ paternity leave. This leave may be extended upto 26 weeks in case the father is the primary caregiver
Diageo India	4 weeks paternity leave
Zomato	26 weeks paternity leave – on par with maternity leave
Netflix	4-8 months paternity leave
Facebook	2 months paternity leave
Microsoft India	6 weeks
Ikea India	6 months’ maternity and paternity leave
Salesforce India	3 months leave for secondary caregivers
Goldman Sachs	6 weeks
Jupiter Networks’ India Excellence Centre	8-9 days to 16 weeks, which can be availed within the first 2 years of childbirth
Tesco	2 weeks, extendable upto 26 weeks in case the male employee is the primary caregiver
Sapient India	10 days
TVS Motors	6 days which can be availed any-time before or after childbirth
Cummins India	1 month
Schneider Electric	2 weeks, extendable upto 4 weeks
IBM India	5 days to be availed within 120 days of childbirth or adoption
Mondelez India	10 days paternity leave. 6 months leave may be availed if the father is the primary caregiver
Wipro	8 weeks paternity leave
Infosys	5 days paternity leave
PepsiCo India	12 weeks paternity leave
Policybazaar.com	15 days; but exception is made in special cases

Though companies in India are providing these benefits, there is still hesitation and discomfort when it comes to paternity leaves. This is because of the rigid gender roles expected of the patriarchal society. And this becomes all the more truer in sectors like manufacturing and construction and in unorganised sectors which employ a lot of people from lower-income groups and rural people.

What are the hurdles to the implementation of Paternity leave policies in India?

Though the Paternity Benefit Bill, 2017 as well as the current policies of companies is a step in the right direction, there are still a few hurdles coming in the way of a successful provision of paternity leaves in India. Some of them are:

As mentioned earlier, the biggest hurdle is perhaps the mindset of the people, both at the implementation level as well as those availing these benefits. Indian society is still largely patriarchal. Hence it is a challenge to change the mindsets of people to accommodate the shifting gender roles as well as the role of women as not just mothers but also as working professionals.

Unless the provisions relating to the Parental Benefit Scheme are well implemented, paternity or even parental leave may be considered as a cost to many companies. This would prevent many smaller companies from pro-actively providing these benefits.

Long duration of paternity leave may be viewed by male employees and companies as a hindrance or a break in career. The anxieties and re-skilling in this regard needs to be addressed.

The Bill was proposed in 2017, and is yet to see the light of day. This is also one of the reasons that paternity leave policies are not provided by a large number of companies as well as the leave provided is not uniform. Moreover, the duration of leave proposed in the Bill is also less compared to benefits offered by some companies, specially in the start-up space as well as multinational companies.

What changes need to be brought in?

The biggest change is the change in mindset from the bottom-up, and this has to be affected by not just the new mothers and fathers, but also by the companies that are implementing them. This further needs to be complemented by support from the families of employees availing these benefits as well.

A top-down approach, where a law is passed in this regard would help to bridge the gaps in the benefits that are offered as well as aid in the implementation of these policies; thereby helping in bringing in gender equality in society.

As for companies, facilities/ benefits like offering gradual gender-neutral return-to-work policies, providing work-from-home options, creating parent support groups, conducting work-life balance sessions for the employees, providing crèche facilities etc. would facilitate in creating a balanced ecosystem at the workplace.

Conclusion

Paternity leaves/ benefits in India are largely voluntary. Yet, many companies, both Indian and foreign, are providing these benefits. Moreover, this has become very important in the current changing social and economic roles, expectations and fluidity of current social structures. However, legal backing of these benefits would go a long way in creating gender equality.