This article is written by Aditi Shrivastava from NMIMS, Mumbai and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Pregnancy and motherhood represent a particularly vulnerable period for working mothers. Expecting mothers and nursing mothers require extra safeguards to preserve their own and their children’s health, as well as enough time to give birth, recuperate and nourish their babies. Simultaneously, they require safeguards to ensure that they do not lose their jobs due to childbirth-related complications or maternity leave. Women’s equal access to employment is ensured by such protection, as is the preservation of potentially necessary income, which is required for the well-being of their entire family. Preserving the health of expectant and nursing mothers, as well as protecting them from workplace discrimination, is a prerequisite for achieving sincere equality and treatment for men and women at work, as well as enabling workers to raise families in a financially secure environment. Therefore, it is essential for the Government of every country to recognize the maternity rights of women and to also have a codified law for the regulation of the same. The maternity law helps in ensuring that pregnant women are not being harassed at the workplace and also that they have been taken care of.
Nowadays, as women are progressing with time, it is no surprise that they raise their kids simultaneously with their jobs. They need to maintain a work-life balance especially during the time of pregnancy and immediately after the birth of their infants. Maternity rights such a paid maternity leaves allow them to take care of their newly born infants and to recover after childbirth. As the first few months after childbirth are the most vulnerable and crucial time for both the mother and the infant, this time must be given to them. Hence, paid maternity leaves and other maternity rights are recognized as essential labor rights of women.
The Maternity Protection Convention of 2000 recognizes maternity rights, intending to ensure that pregnant or breastfeeding women are not forced to undertake employment activities at an organization that is harmful or risky to the mother’s or child’s health. It states that it is illegal for an employer to terminate a woman’s employment while she is pregnant and that a woman is entitled to return to the same or a comparable position paid at the very same rate at the end of her maternity leave.
In India, the maternity rights of women are regulated under the Maternity Benefits Act, 1961 which aims to provide maternity benefits such as paid maternity leaves, payment of maternity benefit in case of death of a woman, nursing breaks during the working hours, and other benefits to the women employed in an establishment as defined under the Act.
In the UK, the most relevant legislation concerning the maternity rights of women are the Employment Act, 2002, and the Work and Families Act, 2006. The Employment Act, 2002 aims to provide statutory rights of paternity and adoption leave and pay and also provides the statutory rights of maternity leave and pay. Work and Families Act, 2006 is concerned with the statutory rights to leave and pay in connection with the birth and adoption of Children.
Legislative framework: Maternity Law in India and UK
The first-ever recognition of Maternity Benefits or Maternity Leave in generality in the time of Pre-Independence occurred in 1928 in the Bombay Presidency of British India when Dr. Babasaheb Ambedkar expressed his strong support for the idea of Maternity Benefits. On many occasions, he was seen defending the idea of Maternity Benefits for the Bombay legislature.
The initial approach of India towards maternity benefits was to provide benefits to women engaged in factories only. However, the legislation was passed in order to ensure the health and safety of women working in the formal sector. Parallel to which the legislation gave no regard to women working in agriculture or other informal sectors, subject to the condition that such informal sectors were not hazardous to health.
Maternity Benefits Act, 1961
In the Post-Independence era, the Republic of India enacted The Maternity Benefits Act, 1961 on 12th December 1961. The statute was enacted in accordance with the International Standards provided for maternity benefits along with conditional benefits including maternity, childbirth, and complications arising from the same. The underlying fact is that, even though India was in its 14th year of Independence and still a developing economy, the statute covered the extensive ground with excruciating detail and attention given to various aspects of factors concerning maternity benefits.
The statute covered every establishment, whether it was a factory, mine, or plantation, as well as any government-owned establishments and facilities where persons were hired for equestrian, acrobatic, or other shows. It also applied to any shop or establishment with a staff of ten or more individuals. The applicability of the legislation’s requirements to industrial, agricultural, and commercial establishments was a significant improvement over the barebones Act of 1928.
Following are the four broad aspects covered by the Act:-
- Leave Duration
A woman is entitled to twelve weeks of maternity leave under the statute, with no more than six weeks preceding her projected delivery date. During that period, the ILO’s advice was taken into consideration.
- Remuneration during leave
Women who meet the Act’s requirements for maternity leave are entitled to maternity benefits at the rate of the average daily salary for the time she is away.
- Job Security
In line with the terms of this Act, it is unlawful for an employer to terminate or discharge any woman at any time during or on account of her absence. The employer may, however, convey the dismissal or discharge in writing if it is due to gross misbehaviour.
- Financial Advantages
Under this statute, every woman is entitled to maternity benefits and, if her company does not provide free prenatal or postnatal care, she is also entitled to a medical bonus of a specific amount from her employer. In the event of the woman’s death, the employer is responsible for paying all dues, including maternity benefits, to the woman’s nominee or legal representative.
The UK presented its first-ever maternity leave enactment through the Employment Protection Act 1975, which was reached out through additional enactment, for example, The Employment Act 1980. Notwithstanding, for the initial 15 years, just with regards to half of working ladies were qualified for this is a result of long qualifying times of business.
Maternity benefit laws are governed by two statutes in the United Kingdom, namely: –
- Employment Act, 2002.
- Work and Families Act, 2006.
Employment Act, 2002
The Act’s Chapter 2 covers maternity benefit provisions, such as the beneficiary’s rights during and after maternity leave, the maternity pay period, the rate of statutory maternity pay, and the employee’s entitlement and employer’s duties.
Work and Families Act, 2006
The Work and Families Act of 2006 is only a guiding statute that establishes the maternity pay period. In 2006, this Act was revised to increase the length of maternity leave from 26 weeks to 52 weeks.
Maternity rights of women in India and UK
In India, the maternity rights of working women are governed by the Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017. It is an act to administer women’s employment in particular organizations to advance for maternity benefits and other advantages before childbirth and post-childbirth to ease the taking care of her child while managing her employment. The Act applies to all establishments in Factories, Mines, Plantations, Shops & Establishments, and other organizations. A woman employee must have worked for 160 (One hundred and sixty) days at the current establishment in the previous 12 months to be qualified under this Act.
Female employees in the private sector must discuss maternity leave policy with their HR department. Various firms have different leave and payment policies. The females who are working as public servants are entitled to 180 days of paid maternity leave for the first two live-born children.
Maternity law has been modified in light of the social context, in which women make up a large part of the labor pool. Pregnancy is a transitional phase that many families anticipate experiencing soon. Many couples make preparations for pregnancy and the postpartum period. Regardless of how happy and excited the pregnancy is, it can also be a source of stress for working women.
Before the Amendment Act of 2017
Prior to the 2017 Amendment of the Maternity Benefit Act, women employees were entitled to a total of 12 weeks (84 days) of maternity leave under the Maternity Benefit Act, 1961. This maternity leave period included 6 weeks of prenatal leave i.e., before the childbirth. A female worker was entitled to six weeks of paid maternity leave in the occurrence of a miscarriage or medical termination of pregnancy.
After the Amendment Act of 2017
The Maternity leave has been raised from 12 to 26 weeks following the 2017 amendment to the Maternity Benefit Act, 1961. The length of prenatal leave has also been extended from six to eight weeks. A woman who has two or more children is entitled to 12 weeks of maternity leave. The prenatal leave would still be six weeks in this case.
According to the Act, a woman who adopts a child under the age of three months is entitled to a 12-week adoption leave.
A commissioning mother is also entitled to a 12-week leave period beginning on the day the child is delivered. The woman who gives birth to the child is referred to as the host or surrogate mother; a commissioning mother is “a biological mother who uses her egg to create an embryo implanted in any other woman.”
Pregnancy is a difficult process that can sometimes be life-threatening. The Maternity Leave Amendment Bill 2017 provides a one-month benefit to women who suffer from crucial conditions such as premature birth, miscarriage, or medical termination of pregnancy.
Under the UK Maternity Law, female employees who are eligible may take up to 52 weeks of maternity leave. The first 26 weeks are referred to as ‘Ordinary Maternity Leave’ or OML while the final 26 weeks are referred to as ‘Additional Maternity Leave’ or AML. If the female employee returns to work after 26 weeks of OML, she has the right to the same employment. The employee shall provide proper notice of maternity leave to her employer. If such a female employee returns to work after AML, she may return to the same position subject to availability, but if that is not practically possible, the employer may provide her suitable alternative employment with comparable terms and conditions.
From the first day of work, all-female workers are eligible for OML and AML. It makes no difference how long she has been working with the employer. The prenatal leave period in UK is 11 weeks.
Women who qualify for the Statutory Maternity Pay are compensated for 39 weeks. Employers pay it to employees and then claim a part or the entire amount from Her Majesty’s Revenue and Customs (HMRC). Even if the employee do not intend to return to work, or are terminated or made redundant, or have a fixed-term contract that ends after the 26th week of pregnancy, women can still obtain SMP for 39 weeks.
Both India and the UK have recognized the maternity rights of women working in an organization or establishment. Also, both the nations have codified laws for the same. The purpose of the Maternity benefit legislations of India and the UK is to provide a financially secured environment to women when they are in labor, to protect the personal and professional interest of the women, and to provide them the opportunity to take care of themselves and their infant before and after the childbirth. The maternity benefit law also ensures the protection of women against workplace discrimination and promotes equal treatment of male and female employees.
Although both India and UK provides maternity rights to women, the rights differ in both nations. In the UK, a female employee is entitled to Maternity leave up to 52 weeks (1 year) whereas, in India, a female employee is entitled to Maternity leave up to only 26 weeks. Therefore, in the UK, a female can have almost an entire year to take care of herself and her infant during and after such a vulnerable period of pregnancy and childbirth. The pre-natal leave in India and UK is a maximum period of 8 weeks and 11 weeks respectively. The rest of the maternity leave is provided after childbirth. The UK provides 3 more weeks of pre-natal leave to female employees. The prenatal period is the most vulnerable and crucial period of pregnancy for any woman.
In the UK, maternity leave is categorized as OML (Ordinary Maternity Leave) and AML (Additional Maternity Leave). The first 26 weeks of Maternity leave are called OML, whereas the last 26 weeks are called AML. AML is the additional maternity leave that is provided to the women employees if they need additional time after 26 weeks of OML to take care of their child. There is no such categorization under Indian law. In India, no additional maternity leave is provided to female employees. Although, after the 2017 Amendment of the Maternity Benefit Act, the female employee is entitled to ask for work from home after the expiration of her maternity leave which shall be subjected to the nature of work performed by such employee.
- The “Maternity Benefit Act, 1961. (India)”
- The Maternity Benefit (Amendment) Act, 2017. (India)
- The Employment Act, 2002. (UK)
- The Work and Families Act, 2006. (UK)
- The Employment Protection Act, 1975. (UK)
- The Employment Act 1980. (UK)
- The Maternity Protection Convention 2000. (ILO)
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