Beyond navigating employment laws, in-house counsel are ensuring their organisations grasp forward-looking inclusion issues to create an attractive workplace. TATA SIA Airlines (Vistara) legal executives Shashank Jain and Ayushi Yadav examine the new rules of the game
The role of the modern in-house counsel in employment matters has expanded to make them a strategic driver of growth by shaping workplaces that are more inclusive and attractive.
Once in-house teams were limited to ensuring compliance, providing interpretation support, helping review employment contracts and dealing with employment litigation. Now they find themselves at the cutting edge of the new economy.
Today’s reality is that attracting talent is daunting and retaining talent is even harder. Remuneration is no longer the sole motivating factor. New and complex challenges arise from the evolving economy and new-age sectors, while complying with employment laws that were designed to cater for a more traditional economy.
Employment laws flow from the directive principles of state policy (part IV of the Constitution of India), which require just and humane work conditions, fair wages and maternity benefits for women.
Based on this, existing employment laws aim to provide financial protection, health, safety, well-being and economic safety. Statutes such as the Payment of Wages Act, 1936, and the Minimum Wages Act, 1948, were enacted to ensure timely payment of wages, while statutes like the Factories Act, 1948, the Plantations Labour Act, 1951, and the Mines Act, 1952, created basic employment conditions.
Today, these statutes have lost much relevance; many contain redundancies that have not kept pace with changing times. Examples include: maintaining spittoons; lime washing workplaces every few years; keeping several employee registers in hard copy; and giving full and final settlement to any terminated employee within two working days.
While changes are on the horizon, in-house counsel need to get creative with meeting existing requirements until proposed labour codes take effect. For instance: advising how to make premises “no-spit zones”, backing digital employee registers with printouts as needed, maintaining white wash records and preparing hand books on managing inspections.
The presence of women in the workforce has led to legislation such as the Maternity Benefit Act, 1961, and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act). Similarly, statutes have been enacted to make workplaces more inclusive, such as the Rights of Persons with Disabilities Act, 2016, the Transgender Persons (Protection of Rights) Act, 2019 (Transgender Persons Act), and the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (the HIV Act).
Applying these laws varies on the nature and form of an organisation. In view of this, an in-house counsel’s scope of work is no longer limited to one-time activities. It requires regular monitoring and promoting of their organisation’s diversity and inclusivity.
The female-centric PoSH Act is aimed at stopping workplace sexual harassment against women, starting from implied sexual advances or express unwelcome behaviour. Among other things, the PoSH Act requires organisations to have an internal committee for handling sexual harassment complaints. The statute obliges employers to organise anti-harassment workshops and awareness programmes for employees and apprise them of the consequences. Delhi High Court has stipulated guidelines for these internal committees, including:
- That members not have any conflict of interest/connection with the complainant;
- The independent member/external member should not be related to the organisation;
- There should be no undue pressure or influence on the members of the internal committee by senior level employees/management; and
- There should be a clear and precise procedure to deal with sexual harassment complaints.
However, the Supreme Court has recognised “serious lapses” in implementation of the PoSH Act in government/public sector organisations, and has issued time-bound detailed directions to ensure its effectiveness.
While the legislation recognises sexual harassment of female employees only and precludes same-gender complaints, the practical realities beg to differ. Sexual harassment is not a gender-specific issue and can equally apply to male and third-gender employees. Thus, while various courts continue to discuss and interpret the issues of the PoSH Act, the role of in-house counsel includes carefully interpreting the statute, apprising management and developing gender-neutral policies.
The Maternity Benefit (Amendment) Act, 2017, empowers all female employees, whether regular, contractual, ad hoc or temporary, to seek maternity benefits from their employers after the birth of a child. The act also covers issues such as maternity leave on miscarriage, tubectomy operations, premature birth, illness arising out of pregnancy, or birth of a third child. It bars dismissal or wages reduction during maternity leave. Additionally, the act provides for creation of crèche facilities to ease women’s return to work; several states have notified their own specific rules in this regard.
Although the act provides an array of benefits to female employees, other aspects remain untouched: paternity leave, and including periods of maternity leave when calculating tenure for other social benefits such as gratuity.
For employers, the compliance requirements for crèche facilities are quite onerous and sometimes difficult to meet. For instance, the Karnataka Maternity Benefit (Amendment) Rules, 2019, requires organisations to have a crèche within their premises or within 500 metres of the entrance gate.
The crèche must be open at all times that parent employees are working. The person in charge must be a woman who has a government approved or recognised qualification and training in “early childhood care and education” or “teacher’s course higher” or equivalent qualification, and will look after children during the absence of their mothers as a teacher-cum-warden. Some organisations could find this impractical – for instance, those with a pan-India presence, a fragmented workforce or non-standard work hours.
The situation is an opportunity for in-house teams to work with their human resources teams on creative solutions. By way of example, a business might come to a service arrangement with a third-party crèche and pay a reasonable amount of money to eligible employees who use it.
Transgender people have been subjected to marginalisation, unemployment, stigmatisation, harassment, poverty and violence. The Transgender Persons Act was enacted to protect them; it covers their welfare, recognition and other related matters. It specifically provides for non-discrimination against transgender people in employment or occupation.
The role of in-house legal teams includes advising on and reviewing policies, procedures and compliance to ensure gender inclusiveness. It is imperative to ensure that the identities of transgender people are preserved and not disclosed without consent.
There are several grey areas around providing reservation in employment or occupation. Here, interpretation and actual implementation becomes crucial to properly covering gender-fluidity.
The HIV Act was promulgated to prevent the virus spreading and to protect the human rights of people affected by it. The statute protects against denial or termination of employment and other workplace discrimination. It also protects against disclosure.
The National AIDS Control Organisation has a comprehensive HIV testing policy; accordingly, mandatory HIV testing cannot be imposed as a precondition for employment. HIV testing can be done only after obtaining informed consent, and pre and post-test counselling should also be conducted.
Keeping track of these provisions, along with accurate interpretation of the HIV Act, is pivotal as the laws can be problematic for organisations that conduct HIV testing as a routine part of their on-boarding process, and without any legal basis.
The HIV Act has destigmatised the HIV disease; however, there are often cases where a lack of consent for HIV testing is contested. In such a situation, the in-house counsel becomes crucial in deciding and recording the legal basis of such testing; and if there is no such basis, the in-house counsel should recommend that human resources excludes such testing from pre-employment health checks.
Additionally, an organisation that retains details of HIV positive employees is likely to encounter several privacy and discrimination-related issues. It is important to maintain specific steps to ensure confidentiality.
Devising and implementing organisational policies with principles of inclusion, diversity and equality has emerged as another important area of contribution of in-house counsel. Constructive interpretation of laws is needed to fill gaps caused by changes in the law and to mitigate statutory risks while keeping employees at the centre. Therefore, the role of an in-house counsel has metamorphosed into an integral driver for creating an appropriate workplace environment.
Shashank Jain, is VP and head legal, and Ayushi Yadav is senior executive – legal, at TATA SIA Airlines (Vistara)