Employment law in India - Workplace Discrimination and Equality

Employment law in India - Workplace Discrimination and Equality: Upholding Constitutional Mandates

Workplace discrimination undermines the principles of fairness, equality, and justice deeply embedded in the Indian Constitution. Articles 14, 15, and 16 lay a robust foundation for addressing and prohibiting discrimination in employment practices, ensuring equal opportunities for all citizens irrespective of their identity. These provisions are critical in fostering a fair work environment in both public and private sectors.

Constitutional Framework

1. Article 14: Ensures equality before the law and equal protection under the law for all individuals. It prohibits arbitrary discrimination by the state and guarantees fairness in its actions.

2. Article 15: Explicitly prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. It also allows for affirmative action favoring socially and economically disadvantaged groups to promote substantive equality.

3. Article 16: Guarantees equality of opportunity in matters of public employment and prohibits discrimination on the grounds mentioned in Article 15. It also allows the state to make provisions for the reservation of jobs for backward classes, Scheduled Castes (SC), Scheduled Tribes (ST), and other disadvantaged groups.

Landmark Judgments on Workplace Equality

1. State of Kerala v. N.M. Thomas (1976)

In this case, the Supreme Court upheld the validity of preferential treatment for Scheduled Castes and Scheduled Tribes in matters of promotion, recognizing the need for affirmative action to bridge historical inequalities. The judgment reinforced the principle of equality by emphasizing that treating unequal groups equally would perpetuate injustice.

2. Indra Sawhney v. Union of India (1992)

Known as the Mandal Commission case, this judgment upheld the reservation of 27% of jobs in public employment for Other Backward Classes (OBCs). The Court ruled that affirmative action is a legitimate tool to achieve equality of opportunity as envisaged under Article 16.

3. Air India v. Nergesh Meerza (1981)

This case dealt with gender-based discrimination. The Supreme Court struck down discriminatory service conditions imposed on female air hostesses, such as termination upon marriage or pregnancy, as being violative of Articles 14, 15, and 16.

4. Navtej Singh Johar v. Union of India (2018)

Although primarily addressing Section 377 of the Indian Penal Code, this case extended its implications to workplace equality by emphasizing the right of LGBTQ+ individuals to non-discriminatory treatment in all aspects of life, including employment.

Challenges in Addressing Workplace Discrimination

1. Unconscious Bias: Many discriminatory practices stem from implicit biases rather than overt prejudice, making them harder to identify and address.

2. Informal Sector Dynamics: A significant portion of India’s workforce operates in the informal sector, where protections against workplace discrimination are minimal.

3. Underreporting: Fear of retaliation and lack of awareness about legal rights often prevent employees from reporting discriminatory practices.

4. Weak Enforcement: Despite robust legal frameworks, the enforcement of anti-discrimination laws remains a challenge due to bureaucratic inefficiencies and resource constraints.

The Way Forward

To achieve genuine workplace equality, several steps must be taken:

1. Awareness and Sensitization: Conducting training programs for employers and employees to recognize and address implicit biases.

2. Strengthening Enforcement Mechanisms: Establishing dedicated bodies to address workplace discrimination complaints promptly and effectively.

3. Inclusive Policies: Formulating workplace policies that promote diversity and inclusion, particularly for marginalized groups.

4. Transparency in Recruitment and Promotion: Implementing clear, merit-based criteria to minimize subjective biases in employment decisions.

Conclusion

The constitutional provisions of Articles 14, 15, and 16 serve as a powerful shield against workplace discrimination and a beacon for equality in employment practices. Landmark judgments have further enriched the understanding and application of these provisions, but the journey toward complete workplace equality requires persistent effort. By fostering awareness, strengthening enforcement, and promoting inclusivity, India can create a work culture that truly embodies the principles of its Constitution.

A Foundation of Clarity: The Essentials of an Employment Contract in India and Tips for Effective Drafting.

An employment contract or appointment letter is the bedrock of the employer-employee relationship, setting the terms and conditions that govern the dynamics of the workplace. In the context of India's diverse employment landscape, a well-drafted employment contract is essential for providing clarity, minimizing disputes, and ensuring legal compliance. This article explores the key essentials of an employment contract in India and offers tips for effective drafting.

Essentials of an Employment Contract in India:

Job Offer and Acceptance:

Clearly state the job position being offered and the terms under which the offer is extended. Include a section for the employee to signify their acceptance of the offer, creating a mutual understanding between the parties.

Terms of Employment:

Define the employment relationship, specifying whether it is permanent, temporary, part-time, or contractual. Outline the duration of the employment, probationary periods, and any conditions that may lead to termination.

Roles and Responsibilities:

Clearly articulate the roles and responsibilities of the employee. This section should encompass the key duties, reporting structure, and expectations related to performance and conduct.

Compensation and Benefits:

Outline the salary or wage structure, including details on frequency and mode of payment. Specify any additional benefits such as bonuses, allowances, healthcare, and retirement benefits.

Working Hours and Leave Policies:

Clearly define the standard working hours, rest days, and any overtime policies. Include information about leave entitlements, including annual leave, sick leave, and any special provisions.

Code of Conduct and Policies:

Incorporate a code of conduct that outlines expected behavior and adherence to organizational policies. Highlight policies related to confidentiality, data protection, non-solicitation, and any other specific guidelines relevant to the workplace.

Probationary Period:

If applicable, clearly state the duration and conditions of any probationary period. Specify the criteria for successful completion and the implications for the employment relationship.

Termination and Notice Period:

Clearly outline the circumstances under which employment can be terminated by either party. Specify the notice period required for termination and the process to be followed.

Confidentiality and Intellectual Property:

Include clauses on confidentiality, restricting the employee from disclosing sensitive company information. Address ownership of intellectual property created during the employment.

Dispute Resolution and Governing Law:

Clearly define the mechanisms for resolving disputes, whether through arbitration, mediation, or litigation. Specify the governing law that will apply to the employment contract.

Tips for Effective Drafting:

Seek Legal Advice:

Consult with legal professionals to ensure that the employment contract complies with Indian labor laws and regulations. Legal advice can help identify potential pitfalls and ensure that the contract provides robust protection for both parties.

Tailor to Specific Roles:

Customize the contract to the specific roles and responsibilities of the employee. Different roles may require specific clauses, so avoid using generic templates without thoughtful consideration.

Use Clear and Concise Language:

Draft the contract using clear and concise language to avoid misunderstandings. Ambiguous terms or complex language can lead to confusion and disputes.

Include a Dispute Resolution Clause:

Incorporate a dispute resolution clause that outlines the process for resolving conflicts. This can help avoid lengthy and costly legal battles in case of disagreements.

Regularly Update Contracts:

Employment contracts should not be static documents. Regularly review and update them to reflect changes in employment laws, organizational policies, or the specific terms of employment.

Communicate Changes Effectively:

When making changes to employment contracts, communicate these changes effectively to employees. Seek their acknowledgment and ensure they understand the implications of any modifications.

Address Confidentiality and Non-Compete:

Clearly address confidentiality obligations and, if necessary, include a non-compete clause. Be mindful of the legal requirements for the enforceability of such clauses in India.

Consider Cultural Sensitivities:

Given India's diverse cultural landscape, be mindful of cultural sensitivities when drafting the contract. Ensure that the language and terms used are respectful and considerate of cultural nuances.

Clarify Ambiguous Terms:

If there are terms that could be subject to interpretation, provide clear definitions within the contract. This helps avoid confusion and ensures that both parties have a shared understanding.

Document Acknowledgment:

Once the employment contract is finalized, ensure that both parties sign and acknowledge the terms. This documentation serves as evidence of mutual agreement and can be crucial in case of disputes.

Conclusion:

An employment contract is more than a legal formality; it is a foundational document that shapes the dynamics of the employer-employee relationship. By incorporating the essentials and following tips for effective drafting, employers in India can create contracts that not only comply with legal requirements but also contribute to a transparent, fair, and productive work environment. As businesses evolve, so should their employment contracts, serving as living documents that adapt to changing needs, policies, and legal landscapes.

Crafting Trust: A Guide to Drafting a Non-Disclosure and Confidentiality Agreement with Service Providers.

In business relationships, trust is paramount, especially when engaging with service providers who may have access to sensitive company information. A Non-Disclosure and Confidentiality Agreement (NDA) serves as a crucial tool in safeguarding proprietary information and fostering a secure partnership. This article explores the key elements and considerations when drafting an effective NDA with service providers.

Understanding the Importance of NDAs with Service Providers:

Service providers often play a critical role in various aspects of business operations, handling proprietary information, trade secrets, and other confidential data. An NDA establishes a legal framework to protect your company's interests, ensuring that sensitive information remains confidential and is not exploited or disclosed without proper authorization.

Key Elements of a Non-Disclosure and Confidentiality Agreement:

1. Identification of Parties: Clearly identify the parties involved, including your company (disclosing party) and the service provider (receiving party). Provide accurate legal names and details to avoid any ambiguity.

2. Definition of Confidential Information: Precisely define what constitutes confidential information. This section should be comprehensive and cover a broad spectrum of information, including but not limited to trade secrets, financial data, proprietary processes, and business strategies.

3. Obligations of the Receiving Party: Clearly outline the obligations of the service provider concerning the handling, use, and protection of confidential information. Specify that the information should only be used for the intended purpose and not disclosed to third parties.

4. Duration of Confidentiality: Define the duration for which the confidentiality obligations will apply. Clearly state whether the agreement terminates after a specific period or if it continues indefinitely, emphasizing the perpetual nature of certain obligations.

5. Permitted Disclosures: Specify instances where the receiving party is allowed to disclose confidential information. This may include disclosures to employees or subcontractors directly involved in the project, provided they are bound by similar confidentiality obligations.

6. Return or Destruction of Information: Clearly state the actions the service provider must take upon termination or completion of the agreement. This may include the return or destruction of confidential information and any copies or derivatives.

7. Exclusions from Confidential Information: Define categories of information that are not considered confidential. This may include information that is already in the public domain, independently developed by the receiving party, or rightfully obtained from a third party without any obligation of confidentiality.

8. Indemnification and Remedies: Clearly outline the consequences of a breach of the NDA, including any monetary damages, injunctive relief, or other remedies available to the disclosing party. Consider including indemnification clauses to hold the service provider accountable for any losses resulting from a breach.

9. Governing Law and Dispute Resolution: Specify the governing law that will apply to the agreement and outline the process for resolving disputes, whether through arbitration, mediation, or litigation.

10. Miscellaneous Provisions: Include any additional provisions that are relevant to the specific nature of the relationship or the information being disclosed. This may include clauses related to force majeure events, amendments to the agreement, or waivers.

Considerations for Drafting:

1. Tailor the Agreement to the Specific Relationship: Customize the NDA to reflect the unique aspects of your relationship with the service provider. Avoid using generic templates and ensure that the agreement addresses the specific nature of the services and information involved.

2. Consult Legal Professionals: Seek legal advice when drafting the NDA to ensure that it complies with applicable laws and regulations. Legal professionals can provide insights into industry best practices and help identify potential risks and mitigations.

3. Mutual NDAs for Balanced Protections: In cases where both parties will be sharing confidential information, consider using a mutual NDA. This ensures that both the disclosing party and the service provider have obligations to protect each other's confidential information.

4. Regular Reviews and Updates: NDAs should not be static documents. Regularly review and update the agreement to account for changes in the business relationship, the nature of the services provided, or any other relevant factors.

Conclusion:

Crafting a comprehensive Non-Disclosure and Confidentiality Agreement with service providers is an essential step in safeguarding your company's proprietary information. By defining clear obligations, exclusions, and remedies, you can establish a foundation of trust that underpins a successful and secure business partnership. As you navigate the intricacies of confidentiality agreements, remember that the strength of your NDA lies not only in its legal robustness but in its ability to foster transparency and accountability in your business relationships.

Understand domestic enquiry due process in India to reduce litigation risks and fair.

A company investigation to identify facts and data about a situation in which an employer has accused an employee of misconduct. Typically, a domestic investigation follows a 'show cause' letter, which is sent to the worker asking for an explanation for the alleged misconduct. The employer will move to a more formal domestic inquiry if the reply is not satisfactory.

We understand that the term domestic inquiry is mainly used to refer to an inquiry into an employee’s charges of indiscipline and misconduct, based on the above description of domestic inquiry. Domestic inquiry means departmental inquiry or domestic tribunal in common parlance. The matter is decided by administrative officers in such investigations and not by the courts of law. It is common for disciplinary authorities in a department or in an industry to appoint an officer or officers in cases of alleged indiscipline to investigate the allegations against an employee. These inquiries are generally referred to as 'Domestic Enquiries'. At times it is in the best interest to engage an outside firm to ensure no bias and adoption of the full procedure.

Notice that the domestic inquiry is simply an exercise in obtaining facts, i.e., the jury charged with collecting the evidence does not make conclusions about guilt or punishment. The final report is sent to the parties involved, most senior officials, who then decide on the required course of action.

PRINCIPLES OF DOMESTIC ENQUIRY

1. The rule of Natural Justice must be observed.

2. The delinquent is entitled to a just hearing.

3. He can call for his own evidence.

4. Cross-examine any witness called by the prosecution.

A disciplinary hearing held by an employer to decide if an employee is guilty of wrongdoing is a domestic investigation. A domestic inquiry is meant to uncover the facts of the accusations made against the worker.

The Industrial Court, in the course of adjudicating whether a dismissal is without just cause or excuse within the context of Section 20 of the Industrial Relations Act 1967, does not merely examine whether there were proper grounds for the employer to terminate the services of the employee but also examines whether the process by which the employee was terminated was fair or unfair.

(a) That there were fair reasons for the firing of the worker;

(b) That the process used to fire the employee was fair.

Dealing with Employee Grievances per Indian Law

Gripes at work are unavoidable. In fact, it's been stated that having a complaint gives one's life meaning. Unresolved complaints are similar to loose cannon balls in a ship; if not handled properly, they can sink the vessel.

In India, the employer is required to implement particular grievance redressal systems at the workplace under several central and state-specific labour regulations. Here is a brief overview of numerous legal processes that HR managers should be aware of and can include in their HR policies and practises:

According to section 9C of the Industrial Disputes Act, 1947 of India (IDA), each employer who employs at least 20 workers must establish a Grievance Redressal Committee (GRC) to settle disputes resulting from worker grievances. The GRC should have a maximum of six members, with equal representation from both the managerial class and the working class.

In order to handle disputes arising out of individual worker grievances relating to non-employment, terms of employment, or conditions of service, the industrial establishment shall have one or more GRCs, according to the draught Industrial Relations Code, 2019 that has been tabled in Lok Sabha. It also suggests expanding the GRC to include ten members in total.

According to Section 3 of the IDA, the labour authorities may direct the creation of a Works Committee (WC) in a workplace with at least 100 employees. The WC must advocate for actions that ensure and uphold amity and goodwill between the employer and its employees, and to that degree, it must offer commentary on issues of shared interest or concern. Additionally, it ought to make an effort to resolve any significant disagreements within the business.

The Sexual Harassment of Women at Company (Prevention, Prohibition and Redressal) Act, 2013 of India (POSH Act) mandates the creation of an internal complaints committee (IC) at every company with at least 10 employees. The IC must look into allegations of workplace sexual harassment of women and make suggestions to the employer. According to the Code of Civil Procedure from 1908, the IC is granted the same authority as a civil court and has a three-year term limit. The statute gives the IC 90 days to finish its investigation and an additional 10 days to publish its report.

Posh act in India

Workplace Harassment Particularly Sexual Oriented Harassment is a growing menace. It is hurting your business in many ways including your Organization’s Reputation, the Output, Employees Motivation& Morale, Productivity and Well-being of stakeholders.

Posh act in India

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013.This statute superseded the Vishakha Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.

The Directors of the company are now legally bound to Prevent, Prohibit and Redress Sexual Harassment of Woman at Workplace.

All organization employing 10 or more employees come under the ambit of this Law.

If an organization fails to constitute an IC or does not comply with the requirements prescribed under the Prevention of Workplace Sexual Harassment Act, a monetary penalty of up to INR 50,000 (approx.US$ 900) may be imposed. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses. It is also pertinent to note that all offences under Prevention of Workplace Sexual Harassment Act are non-cognizable.

Sexual Harassment complaints have the potential to make or break your business. There is potential for significant reputation damage, loss of key talent and worse, litigation!

Introducing Kanchan Khatana & Associates comprehensive ASH (Anti Sexual Harassment) offering that help you become compliant to the law :

1. Design the policy and providing the process to setup the IC

• We help you writing a new policy or revisit the existing ASH policy of the companies and recommend changes as per 2013 law and the subsequent amendment. Also, set up IC and its process flow per the requirements of the prevailing law.

2. Functioning as External Member on the Internal Complaints Committee (IC)

• We provide you hand-holding support to the conduct inquiries related to sexual harassment as and when a complaint is registered in your organization and also provide consultation on routine matters connected with or related to sexual harassment at the workplace.

• We further, support in developing a governance model for implementation of the Policy on Prevention of Sexual Harassment.

3. Annual Trainings:

• We conduct the mandatory sessions on prevention of sexual harassment for your organization at various levels in English and Hindi for IC ,Management and Employee’s at large.

4. Annual filings

• We prepare the content on the functioning of the IC in the Annual Report of the organization and also file the same on behalf of the Organization.