#UngenderLegalCell: Gender Diversity, Appeal Mechanism under PoSH And Workplace Problems

As the lockdown continues, Ungender is back with #UngenderLegalCell — a pro bono initiative to provide legal advice on Twitter on workplace related issues. Our aim is to provide help to all those who have found themselves worrying over legal issues for which answers may not be easily available online or otherwise.

On April 21, we finished the fourth installment of this initiative and answered queries ranging from the legality of termination of employment without giving proper notice to apprehended bias by internal committee members to laws on gender diversity in board of directors of a company in India. Below is a recapitulation of the questions asked and answered by Ungender’s in-house legal expert, Suruchi.

Q 1. Can a person be asked to leave a company with a complete disregard to the notice period in the agreement? Especially when there was no issue as such but the company just wanted to downsize? Cannot take this matter to court as it is a one month notice period but still?

A. Termination of employment in India is governed by shops and establishments law of that State and contract, for an employee working in a company. Any employee being asked to leave must be asked to serve notice period or be given notice pay if asked to leave immediately. There is no hire or fire at whim of employer in India. Hence, if asked to leave even if on account of ‘downsizing’, every employee is entitled to notice or notice pay along with all benefits for that period. Being asked to leave without notice is illegal.

Viewing this question in today’s lockdown scenario, the Ministry of Labour and the Ministry of Home Affairs orders are very widely worded so as to let employers know that there shouldn’t be any wage-cuts or terminations of employment of employees and workers. Therefore, if any employer is still terminating services of employees, then as an immediate step, an employee can call up the labour authorities on the helpline numbers given by them. Details of which can be found here. As soon as any distress call is received, the labour authorities will take appropriate action. Once the lockdown is lifted and nothing has been done, employees can file complaint to the Shops Inspector.

Read #UngenderLegalCell: Lay-Offs, Rights Of PwDs & POSH Act

Q 2. What is the percentage of gender diversity that should be there on a board? Can a same woman be a member of several boards? Is there a limit?

A. Gender diversity is a burning issue today. For a broader perspective, we need a diverse panel. Diversity is required on decision-making panels or even a panel discussion on topics of seminal importance.

The Companies Act in its amendment in 2013 finally brought about this change. As per Section 149 of the said Act read with Rules on Appointment and Qualification of Directors, every listed company and every public company having a paid-up share capital of INR 1 Crores or more or turnover of IN 3 Crores or more has to have at least 1 female director. This number is the minimum prescribed and can increase as per the maximum number of directors allowed under law read with the articles of association of a company

Just like any other person, the maximum number of boards a woman can be a part of is 20 and there is a cap of 10 if she is part of the board of directors of public companies.

Gender diversity is a burning issue today! For a broader perspective, we need a diverse panel. It is reqd in decision making panels or even a panel discussion on topics of seminal imp. Companies Act in its amendment in 2013 finally brought about this change @UngenderTalks

— Suruchi (@suruchikumar) April 21, 2020

 Q3. Can I appeal against an IC member if I find out that there is a chance they can be biased in a probe?

A. A biased IC is doubt in minds of most parties who are a part of a complaint of sexual harassment. The law does not specifically state for a removal of a member on grounds of bias but with all proof and evidence, a representation should be 1st made to IC and management.

IC is a permanent body and its member change every 3 years. A good practice would be to have more members than what is prescribed under law to allow room for shuffling in cases of such complaints of apprehended bias. However, more often than not, there is no room for shuffling or the mindset of leadership is not ready to listen to such complaints. In such cases, if the internal representation does not work, then a complaint can also be made to the District Officer to look into this matter.

In cases where the complaint has concluded and the bias becomes apparent because of the decision, an appeal lies to the appropriate court or tribunal and all evidence can be presented before them.

Read Ten Guiding Pointers For ICC Members During An Investigation

Q 4. Investigation is done and the complainant is not happy with the decision. However company’s management wants to see if they can do something other than guiding the complainant to the appellate authority. Can they?

A. Appeal under the PoSH law can be made to the appellate authority under the service rules or if no such rules exist then to courts or tribunals. Numerous companies have taken up the practice of setting up an internal appellate body to allow appeals to be escalated within the company itself. This body/ person could be a senior level employee of the company and to ensure neutrality will be key here. An appropriate provision can be made in the policy and such a person could be appointed on a case to case basis, keeping in mind aspects like department, parties, gravity etc.

Alternatively, the policy can allow an appeal to be heard by an external officer whose name can be mentioned as appellate authority, someone who has long-standing credibility in dealing with cases of sexual harassment. Unbiased, fairness, neutrality and hearing both parties – as an IC does is same as what an appellate authority would do. However, to implement this properly, companies should devise a well thought of procedure under their rules.

Nothing under law prevents a complainant to approach courts and any agreement restraining them to approach courts is void. A proper appellate procedure in place will only allow the company to do the best it can to sort internally.

We're back this week with our 4th #UngenderLegalCell with PoSH lawyer @suruchikumar who will be available tomorrow, 11 am – 12 pm, to give pro bono advice regarding any matter related to women's legal rights & sexual harassment at workplace. Leave your Qs in the comments!

— Ungender (@ungender_in) April 20, 2020

#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.