INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
However, in the case of large organisations having multi-state presence or if the interviewees are located in different cities, it may not be practically and logisti - cally possible to conduct in-person proceedings. In such cases, leveraging virtual tools can facilitate the investigation process, while ensuring that the necessary information is gathered. Accordingly, some situations may warrant the need for virtual interviews, which may also be recorded by the employer by noti - fying the parties or by obtaining their consent. 3.4 Interviewers Rules Regarding Interviewers The PoSH Act specifies certain criteria on how the ICC and the GRC need to be constituted. Currently, the IR Code mandates that the GRC must be consti - tuted with ten or less than ten members, with equal representation of members from the employer’s side as well as the worker’s side. The IR Code also requires adequate representation of women workers on the GRC so constituted, with the representation not being less than the proportion of women workers to the total workers employed in the establishment. Apart from this, as such, there are no strict rules gov - erning the number of interviewers or their specific skill-sets under Indian labour laws. With respect to an investigation/inquiry under the PoSH Act, the ICC is required to consist of at least four members, with the Presiding Officer being a senior-level woman employee, the external member being from a non-governmental organisation or an association concerned with the cause of women, and the other two members being from amongst employ - ees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge. The law also prescribes that at least one half of the members of the ICC must be women and that, while conducting the inquiry, a minimum of three members of the ICC, including the Presiding Officer, shall be present.
For all other internal HR investigations, members who have sufficient experience and prior knowledge han - dling such matters are often appointed. While interviewers should ideally be of sufficient sen - iority, on the flipside, having a very senior member could also intimidate the interviewees and, therefore, a balanced approach may need to be adopted to cre - ate a comfortable environment for the interviewees. As a general principle, it is crucial that the interviewers remain neutral and do not have any conflicts of inter - est related to the parties involved. While the number of interviewers can be determined by the employer on a case-by-case basis, generally, one or two interviewers are present during interviews and having at least two members helps ensure a more balanced perspective besides reducing any potential risk of bias. 3.5 Neutral Party There is no requirement under Indian laws to have neutral parties present during interviews. While there is no specific statute that prohibits or per - mits the presence of such neutral parties during an internal investigation, it is recommended that these functions be undertaken by members of HR, to avoid breaches of confidentiality and instances of tamper - ing with witnesses or the integrity of the investigation. However, in PoSH cases, the inquiry proceedings should be conducted only by the ICC members. Giv - en the strict confidentiality obligations thereunder, the presence of any neutral third-party should be strictly avoided. 3.6 Support Person and/or Lawyer The current Model Standing Orders in some states allow for employee representation by a colleague or co-worker, whereas the Model Standing Orders in some other states allow for workers to be represent - ed by office bearers of a trade union. However, since the applicability of the standing orders’ related provi - sions are limited to only non-managerial employees, the company policies would largely regulate whether or not representation is permitted during an inquiry.
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