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

A global lock down triggered by a pandemic has taken many of us off guard. What about the mass pay-cuts and lay-offs that are inevitable now? What about the sexual harassment complaints stalled mid-process while companies start to tighten belts and shift focus to fire-fighting measures to stay afloat? We at Ungender feel that the right to legal recourse is a fundamental right and nothing should prevent someone to access that right even during a harsh lockdown. Ungender’s Legal Cell initiative is a small step towards making legal help regarding gender-centric laws at workplace in India accessible to people stuck at home.

In the third installment of #UngenderLegalCell, our in-house legal expert Suruchi Kumar offered free legal advice on April 14, on issues pertaining to lay-offs in the time of lockdown, rights of persons with disabilities under the anti-sexual harassment laws, illegal withholding of documents by former employer and much more, as part of this pro-bono initiative. Since this event is hosted on Twitter, which not everyone has access to, here’s a curation of the questions asked and Suruchi’s answers.

Q 1. I am having concerns about getting lay-off by company or cut-off in salary. I have checked regarding the same online. There’s no article. I would like to know if there’s any law against lay-off in this crucial situation. If yes, what are the actions against them if they do so in the future?

A. Yes, this is a huge concern today. Infact, the PM today (i.e. 14th April 2020) in his address also has appealed to everyone to be empathetic towards their employees. The Ministry of Labour has issued advisories appealing to employers to not lay-off or do any pay-cuts. Depending upon which State you are in, there is a likelihood of that Labour Deptt or the Health and Welfare Deptt of that State issuing advisory or directives to not lay-off employees. Also, the MHA has issued orders for protection of employment and wages migrant workers on 29.03.2020.

All employees who fall within the definition of ‘workman’ are governed by the Industrial Disputes act and the employer has to follow the procedure there for lay-offs which makes sure that there is a reason, 50% wages are given till 45 days and only then dismissal. For all white-collar employees who are not workman, your contract and shops act governs your relationship with employer. There is nothing to prevent or regulate lay-off but the proper procedure for termination has to be followed.

The Labour Ministry has set up control room for taking complaints before the lockdown lifts, so if you feel the lay-off is unfair or not as per law, please call those numbers and speak to the authorities at the numbers provided here. A complaint can also be filed with the shops inspector or the labour commissioner after the lockdown lifts. An appeal to all employers has been made not to lay-off, and looking at the facts and circumstances the authorities will take any action.

Yes this is a very big concern today. Infact, the PM today in his address also has appealed to everyone to empathetic towards their employees. The #MinistryofLabour has issued advisories appealing to employers to not lay-off or do any pay-cuts. @UngenderTalks #UngenderLegalCell

— Suruchi (@suruchikumar) April 14, 2020

Q 2. My wife was working in a college in Blore for couple of months. She resigned from that college in 2019, they were giving over stress to the teachers and also they treat teachers like servants. The principal is very rude and unprofessional. Her certificates are there in the college and college demanded to pay 1 lakhs or else they will not give the certificates, kind of blackmailing. She got a better opportunity after that and now working in one of the reputed colleges in Bangalore. Now they are saying they will not give unless we pay the amount. Been more than 8 months now. What should we do? I heard that no institutions or companies have the right to keep the certificates or demand money from the employees.

A. First and foremost, there is no labour law under which an employer can retain the experience or qualification documents of an employee, that too in original and not return it back. As a practice, employers can keep copies for their records after verifying the originals. I have not come across any such requirement under the UGC guidelines as well, so this act of the principal is completely illegal and should be met with strict punishment.

Secondly, seeking money amounting to 1 lakhs to return original documents of someone is in plain legal terms ‘extortion’. It would be advisable in this case to, 1) File a complaint with UGC against the principal; 2) file a complaint with labour authorities for misconduct against teachers; and 3) file FIR for extortion and to return property of the former employee.

Q 3. A married CXO is being sexually harassed by a junior female colleague. Assuming he is a thorough gentleman and ignores this without filing a complaint. A few months later, the woman files a sexual harassment complaint against him – what does he do?

A. It is imp to see if the CxO in this case falls under “employer”. Is he the CEO or is he occupying other chief positions such as CLO? If he is the employer (the ultimate decision maker) then any complaint against him cannot be taken up by the internal committee. A complaint against the employer can go only to local committee of the district and the IC can be called upon to cooperate in these proceedings, if required. If the CxO however still has a supervisor/decision maker above him then the IC can take up the complaint.

The law categorically states that any complaint received will be sent across to the respondent to give his version of facts and also supply any supporting evidence. The respondent should provide his defence and also give past instances where he was harassed. A categorical statement should be made regarding this complaint being malicious and false and provide all supporting evidence for this claim.

It is essential to mention that false and malicious complaints do not go unpunished. The law allows that any action that can be taken for an instance of sexual harassment can also be taken for a false complaint.

We received this Q on LinkedIn – “A married CXO is being sexually harassed by a junior female colleague. Assuming he is a thorough gentleman and ignores this without filing a complaint…" [1/2] @UngenderTalks #UngenderLegalCell

— Suruchi (@suruchikumar) April 14, 2020

Q 4. I was wondering if there are certain measures in PoSH for any special redressal mechanism for people with Disabilities? I’m the ICC rep of my campus and more clarity on what changes we could bring would be of help!

A. Currently, the law states that if any woman is unable to give a complaint in writing then she can be extended help by the IC for writing. The law also states that anyone who has knowledge of the events and her consent can write complaint on her behalf, like friends, relatives, special educators etc.

As the IC rep, you can ensure assistance is given for writing the complaint, hearings happen in a comfortable and accessible environment, any assistance that is required during the hearing, lawyers are not allowed but a friend or relative can be allowed to sit outside for moral support.

The PoSH policy can have all such additional measures even if the law specifically does not provide for them. There is no bar in molding these policies so long as the basic structure of the law is maintained.

I was wondering if there are certain measures in PoSH for any special redressal mechanism for people with Disabilities?
I'm the ICC rep of my campus and more clarity on what changes we could bring would be of help!

— Preeti ✨ (@Singhpreeti_17) April 14, 2020

Suruchi is available every Tuesday between 11am to 12pm on Twitter. Please follow handles @ungendertalks and @suruchikumar to ask your queries and be involved in the Q&A sessions.

You can DM us, mail us at contact@ungender.in or submit your questions here