Presently, there are no legislative enactments or statutory policies against sexual harassment and abuse at work places. Sexual harassment includes any unwelcome sexually determined behavior including sexually colored remarks, verbal or non-verbal conduct of sexual nature. In the absence of an enacted law to provide for the effective enforcement of gender equality and guarantee against sexual harassment, the Supreme Court of India (in the matter of Vishaka & othr. v. State of Rajasthan) laid down certain guidelines and norms for due observance at all work places whether public or private sector and these guidelines are treated as the law declared by the Supreme Court under Article 141 of the Constitution of India (”Guidelines”) and enforceable in law until suitable legislation is enacted by the Indian Parliament.

Some of the important norms prescribed under the Guidelines are:

Preventive Steps and Awareness:

All employers or persons in charge of work place whether in the public or private sector are required to take appropriate steps to prevent sexual harassment in the organization and undertake the following steps:

There should be an express prohibition of sexual harassment at the work place and this prohibition should be notified, published and circulated in appropriate ways so that awareness of the rights of female employees is created in the Company. For instance, company can incorporate the policy related to sexual harassment in its Employee Handbook/Manual and make it available to each of its employee on her/his joining the services of the company. For the employees who are already working with the company, the management may circulate the revised and amended Employee Handbook (containing the policy against sexual harassment) or alternatively make it available online on intranet. It is advisable to seek acknowledgement receipt of the Handbook from the employees. If the management has concerns related to publishing the policy on prominent places on notice boards of the Company, inclusion of the policy in the Employee Handbook and circulation of this Handbook to each of the employees should be undertaken.

Appropriate work conditions are provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee women have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Appropriate disciplinary action should be initiated by the Company in the event of a misconduct.

Complaints Committee:

An appropriate complaint mechanism would need to be created for the redress of the compliant made by the concerned employee. The complaint mechanism would need to be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service.

The Complaints Committee would need to be headed by a woman and not less than half of its members would need to be women. Further, to prevent the possibility of any undue pressure or influence from the senior levels, such Complaints Committee would need to involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

Employee’s Initiative:

Employees should be allowed to raise issues related to sexual harassment at employee meetings and at other appropriate forums and it should be affirmatively discussed in employer-employee meetings.

In view of the aforesaid Guidelines, the Company would need to observe the aforesaid norms and circulate the guidelines against sexual harassment, may be as part of its Employee Handbook and ensure compliance of the guidelines laid down under the matter of Vishaka & othr. v. State of Rajasthan by the Supreme Court of India.

Seema Jhingan (the author) is a partner with LexCounsel, Law offices, a Delhi based Firm.

Read more

Read more

Staff across England and Wales who fear they may be at risk from unfair decisions in the workplace now have more options than previously available. Especially with the current increase in redundancies, more and more people are desperate for employment law advice and help. As well as being advised after an issue arises it is also a good idea to be aware of your basic rights before an incident occurs.

Advice lines are being rolled out that want to hear from people who fear they may have been unfairly dismissed or forced to resign, or who feel they have been a victim of sex, race, disability, religious or sexual orientation discrimination. Or maybe you’ve been a victim of harassment, or you’re about to be made redundant and don’t know what to do? By either a phone call or a simple click of the mouse, you may find the answers you have been looking for.

New hotlines have been launched specifically for worried workers who feel they have nowhere else to turn. They offer advice and assistance with all types of problems an employee may encounter, and can help workers from all over England and Wales.

Perhaps your situation is a little more extreme and you need representation at an employment tribunal or you’re just looking for advice on maternity or paternity rights - hotlines and employment law websites can help you decide if you have a case worth pursuing.

For example did you know that in 2006 the government removed the upper age limit for unfair dismissal and redundancy rights? The new regulations remove the upper and lower age limits for the entitlement of statutory redundancy pay. The upper age limit on unfair dismissal claims has also been removed. Therefore meaning your employer will have to pay you the statutory minimum redundancy payment even if you are under 18 or over 65 (or after your normal retirement age if this is lower). This means, if you meet all the other requirements, you will receive redundancy pay whatever your age. (direct.gov.uk)

With employment law constantly being updated it is imperative that you follow your grievance with independent professional and experienced advice. Should you have an indication that you have been mistreated at work then you may have the right to “make a claim” against your employer.

The most commonly circulated advice is to be aware of how important it is for employees to move quickly in order to make sure they do not lose their right to claim. This is because there are time limits! If you are in any doubt, it’s best to speak to a specialist employment solicitor as soon as possible after the incident or the dismissal. As a general rule, proceedings must be started within three months of the earliest instance that has triggered the claim.

This article is free to republish provided the authors resource box below remains intact.

Read more

Read more

Parties enter into written agreement or contracts in order to manage expectations. A contract should clearly specify the parties’ rights, duties, and obligations. The contract is an insurance policy against a party’s failure to act in accordance with the contract terms. That said, deciding on whether to enter into employment contract with an employee is not like deciding to enter into any other type of contract. That’s because common-law already provides the foundation (i.e., the rights, duties and obligations) for the relationship between an employer and employee. That foundation is the employment at-will doctrine.

Some employees (and most unions) consider an employer’s power to discharge as being too great. Of course, no one ever questions an employee’s absolute right to terminate his or her employment at any time and for any reason. In part, this is the basis of the bargain between an employer and employee that can be stated in an employment contract.

So what does this have to do with deciding whether or not to enter into an employment contract? Everything! It makes no sense whatsoever for an employer to enter into an employment contract with 99% of employees. That’s because an employer has no need to manage expectations-he has the right to demand an employee’s adherence. It may sound like common sense, but it’s not. It’s just a well understood workplace rule. Entering into an employment contract with most employees is an unnecessary exercise that provides an employer with no greater protection than it would otherwise already have.

That’s not to say that employment contracts never make sense. There is that 1% of employees who present a problem. They are almost always high-level executives, sales employees, or employees with other technical expertise. These employees possess classified information and savoir faire, so you enter into an employment contract with these employees in order to protect yourself against future competitive disadvantage. Stated simply, you don’t want your competitors to get their hands on these employees or the information they possess. The contract adds a layer of protection that you otherwise would not have: a restriction on the employee’s ability to harm you or to aid your competitors.

While the contract may contain clauses that provide obligations on the employer, the main focus of the contract is to restrict an employee’s ability in a few key areas:

1. Competition. A non-compete clause restricts an employee’s right to accept employment with a competitor or start his own competitive venture.

2. Solicitation. A non-solicitation clause is also designed to prevent a former employee from competing against you, but by limiting his ability to solicit your clients, customers or suppliers.

3. Disclosure of Information. A nondisclosure clause restricts an employee’s right to divulge nonpublic or proprietary information. To be enforceable, the contract should define what constitutes confidential information.

4. Hiring Current Employees. An anti-raiding provision restricts an employee’s right to solicit current employees from leaving their employment.

5. Vilification. An anti-disparagement provision prohibits an employee from making statements that are contrary the company’s best interests or the best interests of your current executives.

The Bottom Line

Companies rarely need to enter into written employment contracts with the overwhelming majority of their employees. There are the situations, however, when a written employment contract is not only recommended but necessary. As always, the decision on whether to enter into a written employment contract should be made in consultation with your employment attorney. Drafting this type of contract is not something that should be done in a careless manner, but takes thoughtful consideration and the help of an expert in the field, most probably your company lawyer.

Read more

Read more

Read more

Read more

Read more

Read more