INDIA Law and Practice Contributed by: Anshul Prakash, Kruthi N Murthy and Deeksha Malik, Khaitan & Co
termination – ie, failure to comply with a notice period in case of termination simpliciter, failure to conclude a disciplinary inquiry in cases of termination on account of misconduct, failure to comply with the “last in, first out” principle in cases of collective redundancy involv - ing non-managerial employees, etc. Only non-managerial employees may approach the labour courts/industrial tribunals constituted under the ID Act with a claim of wrongful dismissal. Manage - rial/supervisory employees would be precluded from approaching the labour commissioner, labour court, industrial tribunal, High Court or Supreme Court for any relief, and may only approach the competent civil courts or the appropriate authorities prescribed under the S&E Acts (if applicable). In the case of a successful claim of wrongful dismissal in respect of non-managerial employees, the compe - tent authorities may award relief of reinstatement of services (with or without back wages) and/or dam - ages. However, in respect of managerial employees, depending on the facts and circumstances of the case, the civil courts may only award compensation/ damages by way of relief; managerial employees are not entitled to any relief that is akin to the reinstate- ment of services. 8.2 Anti-Discrimination Employees may raise claims/disputes in cases of con - travention/non-compliance with any of the following anti-discrimination legislation in India: • the Equal Remuneration Act 1976, which prohibits discrimination in relation to remuneration on the grounds of gender (whether at the time of recruit - ment or during employment); • the Rights of Persons with Disabilities Act 2016, which prohibits discrimination on the grounds of the disability status of an employee; • the MB Act, which prohibits discrimination based on the pregnancy/maternity status of a woman and provides for paid maternity leave entitlements; • the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act 2017, which prohibits discrimination against persons with HIV and AIDS, and also pro -
hibits the requirement for HIV testing for obtaining employment; • the Transgender Persons (Protection of Rights) Act 2019, which prohibits discrimination against a transgender person resulting in unfair treatment in employment, or a denial of, or termination from, employment; and • the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which prohibits the sexual harassment of women in the workplace. The relief granted to the aggrieved employee can be in the form of an injunction, punishment of the offender, a penalty, compensation, reinstatement of services or another form of relief, and is subject to the provisions of the applicable law, the nature of discrimination, the impact/consequences of such discrimination, etc. 8.3 Digitalisation There have not been any regulations regarding vir - tual hearings as far as employment disputes are concerned. In most labour courts/industrial tribu - nals, hearings continue to be conducted in person, although a few judicial forums have allowed online filings, depending on the jurisdiction. The ID Act provides for the appointment of concilia - tion officers, boards of conciliation, labour courts and industrial tribunals to hear the claims of non-manage - rial employees. A non-managerial employee can raise a dispute directly before a conciliation officer in case of discharge, dismissal, retrenchment or any form of termination of service. All other “rights disputes” (as mentioned in the Second Schedule of the ID Act) and “interest disputes” (as mentioned in the Third Sched - ule of the ID Act) may be raised by the trade union or management before the labour courts or industrial tribunals, respectively. 9. Dispute Resolution 9.1 Litigation Managerial employees may approach the civil court or the appropriate authorities prescribed under the S&E Acts (if applicable).
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