INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
JSA Advocates & Solicitors 18th Floor SKAV 909 No 9/1
Residency Road Richmond Circle Bengaluru 560 025 Karnataka India
Tel: +91 80 4350 3600 Fax: +91 80 4350 3600 Email: bengaluru@jsalaw.com Web: www.jsalaw.com
1. Opening an HR Internal Investigation 1.1 Circumstances Circumstances Leading to HR Internal Investigations An HR internal investigation may be initiated by an employer under various circumstances including an employee complaint/grievance, allegations of mis - conduct, violation of company policies, or informa - tion from whistle-blowers regarding illegal or unethi - cal practices. HR investigations can also be initiated based on an employer’s observations, legal require - ments, or proactive risk management. Most commonly, investigations are initiated based on formal complaints. If management or HR observes behaviour that raises concerns – eg, unsafe work practices or environment – they may choose to inves - tigate proactively, regardless of whether or not a com - plaint has been filed. 1.2 Bases Legal Bases for an HR Internal Investigation In India, certain laws mandate investigations in specific contexts. For example, the Industrial Relations Code, 2020 (“IR Code”) requires an employer to investigate into grievances arising from “workers” (non-manage - rial level employees) through the Grievance Redressal Committee constituted within the organisation.
Likewise, the Sexual Harassment of Women at Work - place (Prevention, Prohibition and Redressal) Act 2013 (“PoSH Act”) requires employers to constitute an Internal Complaints Committee (ICC) to investigate complaints pertaining to sexual harassment of women at the workplace. In cases involving employee misconduct, an employer is required to conduct a disciplinary inquiry before ini - tiating disciplinary action against the employee such as employment termination. This requirement stems from the state-specific Model Standing Orders framed under the erstwhile Industrial Employment (Standing Orders) Act, 1946 (“Standing Orders Act”), as well as the state-specific shops and establishments acts. With the implementation of the IR Code, the Stand - ing Orders Act stands formally repealed. Under the IR Code, establishments with more than 300 workers are mandatorily required to adopt standing orders as applicable to their establishment. However, until such time that the rules under the IR Code are enacted and the draft Model Standing Orders thereunder come into effect, employers will need to continue relying upon the Model Standing Orders under the erstwhile Stand - ing Orders Act. Apart from the above, employers in India have the discretion to conduct investigations into violations of company policies, including misconduct, based on their internal policies, code of conduct, ethical con -
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