Theme: Labour & Employment

Can my employer ask me to not work with a rival firm if I quit the job?

No, employers cannot deny you the freedom and right to move to any firm if you decide to quit. Such restrictive terms in the contract are very problematic for employees and Indian courts have said that the protection of the rights of an employee seeking employment is more important than protecting the interests of the employer. If such a term is there in your contract, then you should talk to your employer. It is typically referred to as a non-compete clause. If your employer does not want to negotiate or remove such a term in your contract, then your only remedy is to go to court.

Why is it better to have a written employment contract, as compared with an oral one?

Contracts may be in written or oral form but in a scenario where there is no documentation of the offer and acceptance of the job, it may be more difficult to discover whether your employer and you have agreed and promised to honour the words spoken. This is why it is better to have an employment contract that is written and signed by your employer and you. It is also a useful proof for any proof of employment or filing of taxes.

Who sits on a Local Complaints Committee?

The Local Complaints Committee has:

  • A woman Chairperson, a woman in the field of social work committed to the cause of women
  • A woman who is working in the block, taluka, tehsil, ward or municipality.
  • Two members, who are from NGOs/associations/persons committed to the cause of women or are familiar with issues of sexual harassment
    • At least one of them should be a woman
    • At least one of them must have a background of law or legal language
  • An Ex-Officio member, who is an officer dealing with social welfare or women and child development in the district

Is gender-based discrimination the same as sexual harassment?

Sexual harassment is a form of gender-based discrimination. Not all gender-based discrimination at a workplace is sexual harassment. To understand if your case of gender-based discrimination is sexual harassment please look at the explanations above. For more information, please contact a lawyer.

Can a member of the Internal Complaints Committee, which has been constituted to deal with sexual harassment at the workplace, be fired?

A member of the Internal Complaints Committee has to be removed from office if they:

  • Give any information about a sexual harassment case to the public
  • Have been convicted of a crime or are currently the subject of an inquiry themselves
  • Are found guilty in a disciplinary proceeding, or have disciplinary proceedings pending against them
  • Have abused their position in any way

After a member is fired from the committee, the employer will have to find a new member to replace them.

What sort of offices are responsible for preventing sexual harassment?

If you are responsible for the management, supervision, and control of the workplace then you will be understood as an employer under the law. This means you must work to prevent sexual harassment. Offices and employers can include(( Section 2(g), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  • Government offices, where an employer is usually the head of department. Sometimes, the government may decide that another person will be considered as the ’employer.’
  • Private offices, where an employer is any person who manages and is in charge of the office. This includes the board or committee making policies and putting them in place.
  • Any office, where a person is an employer according to their contract.

In a home, where the person or the house which hires a domestic worker. The type of the work and the number of workers do not matter.

What to do if the organisation has not given the Internal complaints committee’s report on time and has delayed the delivery of the report?

It is the employer’s responsibility to ensure the timely submission of reports by ICC which are then made available to the concerned parties.(( Section 19, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If the employer fails to provide the report on time, he/she can be fined for 50,000 Rs.(( Section 21, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). In case there is a delay in the delivery of the investigation report, a complaint can be taken to the Appellate authority prescribed under the service rules of your establishment. In case, there are no service rules, an appeal can be taken to the authority as mentioned in the internal policy of your establishment.  If you are dissatisfied with the order of this Authority, you can take the matter to the court with the help of a lawyer.

What can you do regarding a biased investigation by the Internal Complaints Committee?

Workplaces with more than 10 employees are required to set up an Internal Complaints Committee that specifically handles cases of sexual harassment. If you face sexual harassment at your workplace, you can submit a written complaint to the Committee.(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

The composition of the Committee and the distribution of members is meant to ensure that the investigation is not biased. The members of the Committee(( Section 4(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) must include:

  •  A presiding officer, who is a woman employed at a senior level. If the presiding officer acts in violation of her powers, she will be removed and a new nomination will take place.
  •  At least two employees, preferably those who are committed to the cause of women or who have had experience in social work or have legal knowledge.
  •  One member from a non-government organisation or association committed to the cause of women, or a person familiar with sexual harassment issues. This member will be paid.

At least half of the members of the Committee must be women.

If you feel that the existing Committee is biased, you can request the reconstitution of the Committee on the ground of bias. In this case, you need to establish that there is a real likelihood of bias. Mere apprehension would be insufficient for requesting the reconstitution of the Committee.(( Somaya Gupta v Jawaharlal Nehru University, https://indiankanoon.org/doc/36129445/))

During the investigation, the Committee has to follow certain regulations while making inquiries. If you have filed a complaint accusing another employee, both you and the accused have to be given an opportunity of being heard during the inquiry by the Committee. A copy of the Committee’s findings has to be made available to you and the person you have accused. This enables you to make a representation against the findings before the Committee.(( Section 11, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

Within 10 days after completing the inquiry, the Committee has to provide a report of its findings to the employer, and the report will be made available to both the complainant and the accused. The Committee may decide that your sexual harassment allegation against the accused has not been proved.(( Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If you are not satisfied with this decision due to any reason including bias, you can appeal to the court.(( Section 18, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

If you are being sexually harassed at work and you don’t want to approach the Committee fearing bias etc., you also have an option to directly file a criminal complaint with the police. 

Can my child quit school if he is working with my family in a family enterprise?

No, the law specifically states the importance of a child’s education and so you should not force your child to quit school. Instead, you should encourage him or her to learn and work at the same time. You should keep in mind:

  • Your child can only work in a family enterprise to help his or her own family and only work for the family.
  • Your child should not be given work during school hours and between 7 pm and 8 am.
  • Your child should not be engaged in tasks which may severely affect his education or homework or extra-curricular activity assigned to him or her.
  • Your child should not be engaged in continuous tasks without rest which would make him or her tired. It is important to provide care and support for the child by providing breaks to refresh his health and mind. That is why the law states that the child should not work continuously for more than 3 hours.

Can parents be punished for allowing their children to work?

The parents or guardians of the children who are working in violation of this law will generally not be punished for allowing their children to work.

However, this immunity does not apply if they make their child (who is under 14 years of age) work for commercial purposes or make their child (between 14 years and 18 years) work in a hazardous occupation or process.

The law does give them a chance to correct their wrong – when they are caught doing this the first time, they can settle it by paying money. However, if they make their child work again in violation of the law, they can be punished with a fine of up to Rs. 10,000.

What other work can a child do other than movies and sports under the child labour law?

Apart from sports and movies a child can work in other jobs such as:

  • Cinema and documentary shows on television, like reality shows, quiz shows, talent shows. A child can also participate in a radio activity.
  • Drama serials.
  • Anchor of a show or event.
  • Other artistic performances which the Central Government will permit in individual cases but these do not include street performances for monetary gains.