#UngenderLegalCell: How To Protect Against Emotional Abuse And Job Loss

In the second edition of Ungender’s Legal Cell on April 7, our legal expert Suruchi Kumar broke down several complicated situations as answers to questions on anxieties related to layoffs during the lockdown period, legal formalities one might need to undertake after marriage, and more. Ungender’s Legal Cell initiative makes pro bono legal help regarding gender-centric laws at workplace in India accessible to people stuck at home.

Q1. How can an employee protect themselves from emotional and mental abuse by the employer?

A. It is unfortunate that mental and emotional abuse is not covered specifically under laws. You are requested to see if this has underlying sexual overtones or is workplace discrimination based upon your gender. If the emotional and mental abuse has sexual overtones which is creating a hostile working environment, then you are well within your rights to file a sexual harassment complaint under PoSH.

If the emotional and mental abuse has discriminatory overtones like preventing your promotion or also belittling your participation in the company then it is workplace discrimination and can be addressed by filing a complaint – In either case, please reach out to your HR and Legal department to address this issue internally first, and then take proper legal recourse based on identification of the underlying issues.

We received this Q on our LinkedIn handle – "What is my recourse if my case goes to NCW, a case worker finds there's no conclusive evidence and closed the file while I am still getting harassed by my superior…" [1/2] #UngenderLegalCell @UngenderTalks https://t.co/50cO2rKyNL

— Suruchi (@suruchikumar) April 7, 2020

Q2. What is my recourse if my case goes to NCW, a case worker finds there’s no conclusive evidence and closes the file while I am still getting harassed by my superior. My company’s IC found the evidence inconclusive. I do not want a mediation. I do not want to go to the police.

A. In such situations, it is recommended to take a legal opinion to identify any discrepancies in the process followed by the company’s IC while investigating the complaint. Were they properly constituted? Was a conflict check done? Did they call all witnesses?

This legal opinion should be taken as soon as possible as it will allow the complainant to identify any lapses and file a proper appeal before the industrial tribunal within 90 days of the decision. It is not compulsory to go for a mediation or to the police. If 90 days have already lapsed since this complaint, then one can also approach the high court of that state.

Q. Is it necessary for an Indian woman to change her last name to her husband’s last name? What does the law say? Do I need to inform my employer?

A. Changing your last name and adopting your husband’s name as your last name is more of a custom than a legal requirement. In fact in 2012, Bombay HC had struck off a provision in the Family Courts Act and allowed women to file proceedings under their maiden name. There is no legal mandate to change your last name. However, if you do decide to do so then you would need to get your identity documents such as passport, Aadhar card, etc. changed to reflect the new last name

Furthermore, if you have changed your name officially, it would be advisable to inform your employer about the change in your last name to keep the employer records updated. As your employer maintains records of your personal details such as name, address and kin, etc.

Can folks also ask about employment related anxieties in this session? That they may be laid off without notice

— সোহিনী 🌻 | ஸோஹினி | Sohini (@sohinichat) April 7, 2020

Q3. Can folks also ask about employment related anxieties in this session? That they may be laid off without notice?

A. This question is very crucial today and is plaguing everyone’s mind. Lay-off is a very strict procedure under law and any employer planning to do so has to bear in mind the regime of law. Any termination has to be done as per contract and law governing commercial establishments. It is also important to mention that the Labour Ministry has also issued advisories to not lay-off or pay-cuts in these testing times. Please see this advisory issued by the Labour Ministry, it clearly appeals to not lay-off or deduct wages.

Q4. I have been employed with a company for over six months now and this was my probation period. Company knew that I am a mother of a one year old child. Now they’re not confirming my appointment letter and asking me to leave the company. What does the law say about this? What are my rights?

A. Probation is not a regulated concept under law and is generally a contractual/ policy- based concept to ascertain the fit of an individual within the company. Needless to say, no employee can be on probation forever and has to be confirmed or not.

But even for the termination of employment, valid reasons have to be given. Please check if the reason is performance issues or redundancy. Both can be challenged if proper procedure is not followed and this is discrimination on the employee being a mother. If it is performance based then PIPs must have been implemented or at least disciplinary action should have been taken – only then is it justified dismissal. If not, a complaint can be filed with labor authorities for illegal dismissal.

Same for redundancy, if the department is doing fine and there is a replacement taken immediately for your role after dismissal – it’s an unjustified dismissal and a complaint can be filed with labor authorities. Before any action is taken by the company, please see what reason they are giving, your legal recourse lies on the reason being given or lack thereof. An un-reasoned dismissal can be challenged before the Shops and Establishments Inspector of your district.

#UngenderLegalCell is a pro-bono initiative during the COVID-19 lockdown organised every Tuesday from 11 AM – 12 PM on our Twitter handle @ungendertalks. If you have any questions, write to us or submit your questions to this form.