Let us look at some of the legal rights at workplace that one should definitely know about:
Equal remuneration and recruitment rights of women: This is a legal right derived from articles 14 and 15 of the Constitution of India. It talks about giving ‘equal job and salary’ opportunities to women. As per Section 4 of Equal Remuneration Act, 1976, no employer shall pay to any employee remuneration less favourable than employee of the opposite sex, for performing the same work or work of a similar nature. Section 5 states that there shall be no discrimination by an employer towards women, while making any recruitment, promotion, transfer or training for the same work or work of a similar nature, unless women are prohibited to do such work as per law. However, this should not be interpreted to mean that two employees at same level of work will get same increment even if the quality of work and turnaround time varies as organisations appraisal system takes into account various factors.
Sexual harassment: Women have been the victims of sexual harassment in the workplace. This is a worldwide problem not only limited to our country, putting negative impact on both men and women. In India, it was first flagged in Vishaka Case then in Medha Kotwal case. The “Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013” (“the Act”) was enacted which covers public and private organization but the Act empowers only women to make complaints for sexual harassment at workplace. However, employee centric organizations make sure that they treat sexual harassment as an offence, against both male and female, under their service rules. Sexual harassment is usually associated with making unwelcome or uninvited advances to another employee or to act in a manner which creates a hostile working environment for the other employee. Nowadays, there have been cases reported where one employee harasses another employee of the same gender, the act does cover harassment by one female upon another but is does not cover harassment of male, either by a male or female colleague. Any work place with more than 10 employees should have an internal complaints committee and if ICC has not been formulated it may expose employers for a fine upto Rs. 1 Lakh and cancellation of license as well. Enquiry proceedings (with final judgement) of any registered complaint should be completed within 90 days, from the date of filing of complaint, as per the Act
Non-compete: This is one of the clauses which are imbibed in every appointment letter as a regular clause & invoked by the employers on the instances when the employee tries to terminate its employment and switch over to an organisation who is a competitor of the current employer. One must know that Section 27 of Indian Contract Act, 1872 states that any agreement/clause by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Also, according to article 19(1)(g) of Constitution of India, 1949, all citizens have right to practise any lawful profession, or to carry on any occupation, trade or business. The Supreme Court of India, in Gujarat Bottling Co. Ltd. v. Coca Cola Co., has made it clear that non-compete clauses operating beyond the term of the contract would not be enforceable as they would have the effect of restraining persons from exercising their right to freedom of trade and would hence be violative of Section 27 of the Contract Act. The Court in various other judgements has also tested non-compete clauses which are more specific in nature and restricts employee on specific situations and held that restrictions which are specific in nature and does not encroach upon a person right under Article 19(1)(g) can be enforced. Therefore, blanket restriction not to work with a competitor cannot be enforced by an employer.
Retrenchment/Lay-off: Lay-off under section 2 (kkk) of Industrial disputes act means, failure, refusal, or inability of an employer to give employment to a workman whose name is on the muster rolls of his industrial establishment and who has not been retrenched, on the account of lack of coal, lack of power, lack of raw material, over stocking of output, failure of machinery, due to natural calamity, or due to any other connected reason. Retrenchment under section 2 (oo) means termination of service of an employee by an employer for any reason other than as a punishment due to disciplinary action. This does not include - voluntary retirement, superannuation, non-renewal of contract, termination on the ground of continued ill-health. According to section 25 (f) of Industrial Dispute Act, any employee who has been under employment for a continuous period of one year or more cannot be retrenched by employer until the employee has been given one month’s notice, in writing, indicating the reasons of retrenchment or a compensation has been paid which shall be equivalent to 15 days’ average pay (for every completed year of continuous service), provided that employee has not been dismissed due to disciplinary action. Also, in order to dismiss an employee on the ground of disciplinary action, a proper hearing is to be provided to the employee for making his or her case before the disciplinary committee. If the employee has been dismissed on false or arbitrary action then the same can be challenged in labour courts.
Ergo, there are various laws in India, which safeguard the interest of the employees; it is just that majority of us don’t have knowledge about such pivotal rights and this is the reason the employers, including the big players of industry, don’t adhere to the laws which have been made mandatory for them to follow. Understanding your legal rights is the first step to taut them. It’s time to realize, rise and fight against the wrong.
From India, Suri
9Equal remuneration and recruitment rights of women: This is a legal right derived from articles 14 and 15 of the Constitution of India. It talks about giving ‘equal job and salary’ opportunities to women. As per Section 4 of Equal Remuneration Act, 1976, no employer shall pay to any employee remuneration less favourable than employee of the opposite sex, for performing the same work or work of a similar nature. Section 5 states that there shall be no discrimination by an employer towards women, while making any recruitment, promotion, transfer or training for the same work or work of a similar nature, unless women are prohibited to do such work as per law. However, this should not be interpreted to mean that two employees at same level of work will get same increment even if the quality of work and turnaround time varies as organisations appraisal system takes into account various factors.
Sexual harassment: Women have been the victims of sexual harassment in the workplace. This is a worldwide problem not only limited to our country, putting negative impact on both men and women. In India, it was first flagged in Vishaka Case then in Medha Kotwal case. The “Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013” (“the Act”) was enacted which covers public and private organization but the Act empowers only women to make complaints for sexual harassment at workplace. However, employee centric organizations make sure that they treat sexual harassment as an offence, against both male and female, under their service rules. Sexual harassment is usually associated with making unwelcome or uninvited advances to another employee or to act in a manner which creates a hostile working environment for the other employee. Nowadays, there have been cases reported where one employee harasses another employee of the same gender, the act does cover harassment by one female upon another but is does not cover harassment of male, either by a male or female colleague. Any work place with more than 10 employees should have an internal complaints committee and if ICC has not been formulated it may expose employers for a fine upto Rs. 1 Lakh and cancellation of license as well. Enquiry proceedings (with final judgement) of any registered complaint should be completed within 90 days, from the date of filing of complaint, as per the Act
Non-compete: This is one of the clauses which are imbibed in every appointment letter as a regular clause & invoked by the employers on the instances when the employee tries to terminate its employment and switch over to an organisation who is a competitor of the current employer. One must know that Section 27 of Indian Contract Act, 1872 states that any agreement/clause by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Also, according to article 19(1)(g) of Constitution of India, 1949, all citizens have right to practise any lawful profession, or to carry on any occupation, trade or business. The Supreme Court of India, in Gujarat Bottling Co. Ltd. v. Coca Cola Co., has made it clear that non-compete clauses operating beyond the term of the contract would not be enforceable as they would have the effect of restraining persons from exercising their right to freedom of trade and would hence be violative of Section 27 of the Contract Act. The Court in various other judgements has also tested non-compete clauses which are more specific in nature and restricts employee on specific situations and held that restrictions which are specific in nature and does not encroach upon a person right under Article 19(1)(g) can be enforced. Therefore, blanket restriction not to work with a competitor cannot be enforced by an employer.
Retrenchment/Lay-off: Lay-off under section 2 (kkk) of Industrial disputes act means, failure, refusal, or inability of an employer to give employment to a workman whose name is on the muster rolls of his industrial establishment and who has not been retrenched, on the account of lack of coal, lack of power, lack of raw material, over stocking of output, failure of machinery, due to natural calamity, or due to any other connected reason. Retrenchment under section 2 (oo) means termination of service of an employee by an employer for any reason other than as a punishment due to disciplinary action. This does not include - voluntary retirement, superannuation, non-renewal of contract, termination on the ground of continued ill-health. According to section 25 (f) of Industrial Dispute Act, any employee who has been under employment for a continuous period of one year or more cannot be retrenched by employer until the employee has been given one month’s notice, in writing, indicating the reasons of retrenchment or a compensation has been paid which shall be equivalent to 15 days’ average pay (for every completed year of continuous service), provided that employee has not been dismissed due to disciplinary action. Also, in order to dismiss an employee on the ground of disciplinary action, a proper hearing is to be provided to the employee for making his or her case before the disciplinary committee. If the employee has been dismissed on false or arbitrary action then the same can be challenged in labour courts.
Ergo, there are various laws in India, which safeguard the interest of the employees; it is just that majority of us don’t have knowledge about such pivotal rights and this is the reason the employers, including the big players of industry, don’t adhere to the laws which have been made mandatory for them to follow. Understanding your legal rights is the first step to taut them. It’s time to realize, rise and fight against the wrong.
From India, Suri
Madam MADHUPARNA DASGUPTA ji,
Thank you very much for your post.
It is a very good article but the author of the same is Mr. Kanishk Agarwal and seems, you have done copy paste here.
Or is it your own article and Mr. Kanishk Agarwal has done copy paste of your article?
Either way, it is a serious matter. It is an offense.
I am writing this only to make awareness amongst us on merely doing copy paste without giving due credit to the real author is an offense and nothing else.
From India, Mumbai
Thank you very much for your post.
It is a very good article but the author of the same is Mr. Kanishk Agarwal and seems, you have done copy paste here.
Or is it your own article and Mr. Kanishk Agarwal has done copy paste of your article?
Either way, it is a serious matter. It is an offense.
I am writing this only to make awareness amongst us on merely doing copy paste without giving due credit to the real author is an offense and nothing else.
From India, Mumbai
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Legal Liabilities Of Workplace Harassment.docx
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