Theme: Employment

Content of an Employment Contract

In order to safeguard all your rights as an employee, you should make sure:

  • You have a written employment contract. It is easier to resolve any disagreements or disputes if you have all the terms in writing.
  • You have read all the terms mentioned in your contract. You are legally bound to comply with the terms after signing it. These terms decide your role and responsibility with the new employer. If you want your employer to add or modify anything in the terms of your contract, you must discuss it before signing the agreement.

HR Policy

It is not necessary that all the terms will be in your employment contract. Sometimes they may be mentioned in the HR policy of your organization. It is necessary for you to read and be informed of all the policies, in order to avoid any dispute with your employer and assert your rights.

Written Contracts

The following details are included in most written contracts:

  • Your Official Name
  • Head of the Organization’s Name
  •  Organization Name
  •  Job Description
  •  Employment Period
  •  Working Hours
  •  Salary
  •  Other allowances
  •  Holidays
  •  Leaves
  •  Insurance
  •  Confidentiality terms
  •  Non-compete terms
  •  Non-solicitation terms
  •  Dispute Resolution Method/ Remedies like arbitration.
  •  Training/Indemnity bond
  •  Reasons for Termination
  •  Notice period
  •  Retirement/Pension
  •  Provident Fund and Gratuity
  •  Overtime Compensation (if any)
  •  Work From Home policy (if any)

Who are the authorities under the law?

Advisory Board

The Government will constitute the Advisory Boards at the Central and State level to advise them on matters like:

  • Fixing or revising minimum wages
  • Providing increasing employment opportunities for women and the extent to which establishments can employ women(( Section 42, Code on Wages, 2019.)).

Inspector-cum-facilitator

The concerned Government might appoint Inspector-cum-faciltators to:

  • Advice employers and workers relating to compliance with the provisions of this Code.
  • Inspect establishments(( Section 51, Code on Wages, 2019.)).

Gazetted Officer

The concerned Government might appoint one or more authorities, not below the rank of a Gazetted Officer, to hear and determine the claims under the Code. The authority will try to resolve the issue within three months, and can additionally order the employer to pay compensation up to ten times of the claim.

If the employer does not pay the claim and compensation, the authority will issue a certificate of recovery to the Collector or District Magistrate of the area where the establishment is located, to recover the amount as arrears of land revenue. They will  give the recovered amount to the authority to pay the concerned employee(( Section 45, Code on Wages, 2019.)).
If a person is not satisfied with the authority’s decision, they can appeal to the appellate authority within ninety days(( Section 49, Code on Wages, 2019.)).

Misconduct by Pharmacists

The actions of a registered pharmacist which shall qualify for misconduct and those actions which can be complained against include:

Violation of Law

  • Violations of regulations under the Pharmacist Act (including violations associated with the duties of a pharmacist, which can be found here).(( Regulation 13(a), Pharmacy Practice Regulations, 2015))
  • If a registered pharmacist working in a pharmacy is also found working in another pharmacy/, pharmacy college/institution/industry/any other organization as a teaching faculty or otherwise, this is an act of misconduct.(( Regulation 13(u), Pharmacy Practice Regulations, 2015))

Handling medicines

  • Dispensing medicines which require prescription, without the prescription of the Registered Medical Practitioner.(( Regulation 13(b), Pharmacy Practice Regulations, 2015))
  • Substitution of the prescription without approval/consent of the Registered Medical Practitioner.(( Regulation 13(c), Pharmacy Practice Regulations, 2015))

Registration certificate and information related

  • Allowing the owner of the pharmacy to use their pharmacist registration certificate without attending the pharmacy.(( Regulation 13(d), Pharmacy Practice Regulations, 2015))
  • Giving their pharmacist registration certificate at more than one pharmacy.(( Regulation 13(e), Pharmacy Practice Regulations, 2015))
  • Not maintaining the prescription/dispensing records of patients for five years, and refusing to provide these records within 72 hours when the patient or an authorised representative makes a request.(( Regulation 13(f), Pharmacy Practice Regulations, 2015))
  • Not displaying the registration certificate accorded by the State Pharmacy Council in the pharmacy.(( Regulation 13(g), Pharmacy Practice Regulations, 2015))

Improper Conduct or Crimes

  • Committing adultery or improper conduct with a patient, or maintaining an improper association with a patient by abusing their professional position.(( Regulation 13(i), Pharmacy Practice Regulations, 2015))
  • Conviction by a court for offences involving moral turpitude or criminal acts.(( Regulation 13(j), Pharmacy Practice Regulations, 2015))
  • Using agents for procuring patients.(( Regulation 13(r), Pharmacy Practice Regulations, 2015))

Confidentiality and Disclosure of Information

  • Contributing to press articles and giving interviews regarding diseases and treatments which may have the effect of advertising or soliciting practices. However, pharmacists are free to write to the press under their own name on matters of public health and hygienic living. They can also deliver public lectures and talks under their own name, and announce the same in the press.(( Regulation 13(m), Pharmacy Practice Regulations, 2015))
  • Disclosing the secrets of a patient learnt in the exercise of their profession. However, disclosure is permitted:
    • In a court of law under orders of the presiding judicial officer;
    • In circumstances where there is a serious and identified risk to a specific person and /or community; and
    • In case of notifiable diseases.(( Regulation 13(n), Pharmacy Practice Regulations, 2015))
  • Refusing solely on religious grounds to dispense medicines on the prescription of a Registered Medical Practitioner.(( Regulation 13(o), Pharmacy Practice Regulations, 2015))
  • Publishing photographs or case reports of patients without their permission in any medical or other journal, in a manner by which the patient’s identity can be made out. However, if the identity is not disclosed, the consent is not needed.(( Regulation 13(p), Pharmacy Practice Regulations, 2015))

Further, in case a registered pharmacist is running a pharmacy and employing other pharmacists for help, the ultimate responsibility rests on the registered pharmacist.(( Regulation 13(q), Pharmacy Practice Regulations, 2015))

This is not a complete exhaustive list of all kinds of professional misconduct. However, circumstances that are not mentioned above may also qualify as professional misconduct, and the responsible pharmacy council can take action on the same.(( Regulation 14(a), Pharmacy Practice Regulations, 2015)) Further, this would mean that violation of any of the prescribed ethical standards of a Pharmacist, mentioned here, might also qualify as a ground for disciplinary action.

Restrictive Terms in a Contract

There may be restrictive terms mentioned in your contract. In India, you have a fundamental right to practice any trade, profession or conduct any business. However, this is not an unlimited freedom.

You will find certain clauses or terms in your agreement that in some way restrict you to a certain degree from carrying on a business, trade, or profession either during or after employment. These clauses are commonly known as restrictive clauses. They are:

What are the offences and punishments under the law?

Crime Punishment
Paying an employee less than the due amount First offence – Fine of up to Rupees fifty thousand
Subsequent offence within five years – Jail time up to three months and/or fine up to Rupees one lakh
Violating the Code in any other way First offence – Fine of up to Rupees twenty thousand
Similar subsequent offences within five years – Jail time up to one month and/or fine up to Rupees forty thousand
Not maintaining proper records in the establishment Fine up to Rupees ten thousand

 

Under this law, Courts will only take up complaints made by:

  • Government
  • Employee
  • Registered Trade Union
  • Inspector-cum-Facilitator

Who is a Clinical Psychologist?

A clinical psychologist is a mental health professional with training in the diagnosis and psychological treatment of mental, behavioral and emotional illnesses. However, unlike a Psychiatrist, a Psychologist does not have a medical degree and therefore, cannot prescribe medicines.(( The Role and Training of a Clinical Psychologist, https://www.verywellmind.com/clinical-psychologist-2510503))

Further, the Mental Healthcare Act of 2017 defines a clinical psychologist as a person having:

  •  A recognized qualification in Clinical Psychology from an institution approved and recognized by the Rehabilitation Council of India, or
  • A postgraduate degree in Psychology or Clinical Psychology or Applied Psychology and a Master of Philosophy in Clinical Psychology or Medical and Social Psychology after completing a full time course of two years. This should include supervised clinical training from any University recognized by the University Grants Commission and approved and recognized by the Rehabilitation Council of India.(( Section 2(1)(g), Mental Healthcare Act, 2017))

Clinical Psychologists come under the broad category of Rehabilitation Professionals.(( Section 2(1)(n), Rehabilitation Council of India Act, 1992)) For instance, this includes other professions such as audiologists, speech therapists etc. The Rehabilitation Council of India maintains a register of all the registered rehabilitation professionals in India.(( Section 19, Rehabilitation Council of India Act, 1992)) You can search for details of clinical psychologists here.

Confidentiality Clause/Non-Disclosure Clause

What is Confidentiality?

The organization or company you are employed with has a right to protect its trade secrets and other confidential business dealings. Hence, a clause in your employment contract restricts you from sharing or disclosing any confidential information of the employer to anyone outside the organization. This clause is known as a confidentiality clause. It is sometimes referred to as a non-disclosure clause as well.

Typically, the term ‘confidential information’ is widely defined to cover almost all information that you get from your employer. You should read the definition carefully to make sure that you are not violating the confidentiality clause during or after your employment. Apart from information specifically marked as ‘confidential’ or ‘proprietary’, it is safe to assume that information like technical and business information, intellectual property rights, formulae, software programs or codes, internal reports, trade secrets, inventions, know-how, business strategies, marketing tactics, financial information, information about your employer’s clients and/or customers and other commercially valuable information is meant to be kept confidential.

When does Confidentiality apply to you?

The confidentiality clause applies not only while you are in the company’s employment, but also after. If you share confidential information after your employment has ended, it would be a violation of your contract and your employer may file a case against you.

This does not mean that you cannot be employed by a company doing similar work. Legally, you have the right to work wherever you want to, but you cannot disclose any confidential information from your previous employer in your new employment. For example, if you were working with P&G before and are now offered a job with Unilever, you will not be restricted from taking up the job. But you cannot disclose trade secrets of P&G to Unilever.

No Confidentiality Clause in Agreement

If there is no confidentiality clause in your agreement, you have a duty of fidelity to your ex-employer to not disclose to others or to use for your own profit the trade secrets and confidential information you learned during the course of your employment with them. In some cases, you can be sued for criminal breach of trust also.

General Duties of a Clinical Psychologist

Given below are some of the duties of a clinical psychologist:

Advertising Services

A clinical psychologist should not:

  • Solicit any person with disabilities, directly or indirectly. This includes advertisements, circulars, hand-bills etc. However, clinical psychologists can formally announce through the press about starting/resumption of practice, change of practice, change of address, winding up of practice, and temporary absence from practice.(( Regulation 3, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Display qualifications on the sign board, letter head pad, prescription slip, visiting card, certificate, report and other documents that carry the psychologist’s signature. The Registration Certificate should also be fixed in the place of practice, in a clearly visible manner.(( Regulation 8, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Not undertake practice in any field other than the psychologist’s field of specialization.(( Regulation 11(k), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Fee and Payment

Clinical psychologists should not charge an exorbitant fee. Also, a psychologist should not enter into a deal of ‘No payment, no cure’.(( Regulation 9, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Details of Patients

Clinical psychologists should maintain a register of the details of patients, prescriptions issued, fees charged etc.(( Regulation 13, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Moreover, clinical psychologists have the duty to maintain confidentiality. This includes keeping the information about their patient’s mental health, mental healthcare treatment, and physical healthcare confidential.(( Section 23, Mental Health Act, 2017))

Treatment and Care of Patients

A clinical psychologist should undertake rehabilitation or treatment of people with disabilities at regular and required intervals, or the proper time.(( Regulation 11(h), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998)) However, they should not:

  • Exaggerate the course of disease or the gravity of the condition of any person with disability.(( Regulation 10, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Indulge in any indecent activity or have any improper relations.(( Regulation 11(b) and 11(c)The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Make use of harsh and rough language with any person with disability.(( Regulation 11(d), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Take undue advantage of the condition of a person with disability.(( Regulation 11(f), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Intentionally and knowingly neglect any person with disability.(( Regulation 11(i), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Avail or attempt to avail any benefit meant for people with disability.(( Regulation 11(j), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Violation of these duties will qualify as misconduct and can make a psychologist liable to disciplinary proceedings by the Rehabilitation Council of India.(( Regulation 15, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Non-Compete Clause

A non-compete clause in an employment contract restricts a current employee from competing with their employer in the same or similar area of business as the employer. Typically, this restriction is not limited only to the duration of employment but also for a specified period after the employment is terminated or concluded.

Some examples are:

  • If H is in the business of manufacturing air purifiers with a specific technology then its employee Y cannot start a rival business with the same technology.
  • Harpeet Singh Bedi is a salesman at AYS Computers, with whom he has a non-compete clause. If Harpeet starts a business, Rocket Sales Corporation, which is similar to AYS, while still in AYS’s employment, he is violating the terms of his contract and may be sued, as the clause specifically forbids him from doing so.