INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
With respect to other organisations that are non- unionised and where there are no internal policies that provide for the presence of such support persons, as such, there is no requirement for interviewees to be provided the right to bring a companion at an investi - gation or any other meeting. Unlike under the PoSH Act, where the parties to an inquiry are restricted from bringing a lawyer, such a blanket prohibition does not exist for other investi - gation proceedings. Accordingly, an employer has the ability to set reasonable restrictions on who can accompany an employee. For instance, an employer may restrict companions to internal staff (such as a colleague) rather than external parties (like lawyers). However, it is imperative that such restrictions do not infringe an employee’s right to a fair process. For example, if the investigation is being conducted by an external counsel or a panel of lawyers, the interviewee might request for legal representation, which may be allowed. 3.7 Information While the law does not specify any particular informa - tion that needs to be provided to the interviewees, it is important for interviewers to provide certain infor - mation to the interviewees at both the start and end of the interview to create a transparent and support - ive environment, which encourages honest and open communication during the investigation. At the commencement of the investigative interview, it is critical to explain to the interviewee the reason for the interview and the context for the investigation. However, the level of detail provided to the interviewee should be carefully considered, taking into account their role in relation to the investigation. For example, a witness should be provided with sufficient context to understand their role in the process, but not neces - sarily the full scope of the investigation. In contrast, in a disciplinary inquiry, the respondent will need to be made aware of the specific nature of the concerns/ charges levied against them. At the start of the interview, it is also essential to explain the confidentiality obligations and reassure
the interviewee that participating in the investigation will not lead to retaliation or negative consequences. If the interviewee has a right to representation under law or company policies, they can also be informed of the same. If the interviewer is an external lawyer, an Upjohn warning (a corporate Miranda warning) may be pro - vided upfront, clarifying that the employee is speak - ing to the employer’s attorney who represents the employer and not the individual employee. It informs the employee that the information shared during the interview may be protected by attorney–client privi - lege, but that this privilege belongs to the employer and not the interviewee. It further explains that if the employer decides to waive the privilege or if there is a subsequent legal proceeding, the information could be disclosed. At the conclusion of the interview, the interviewer may provide a summary of what was discussed to ensure that the parties are aligned on the details shared. If necessary, the interviewer should outline any further steps in the investigative process, including potential follow-ups, timelines for resolution, and how addi - tional information will be handled. The interviewer should also ideally provide their con - tact details, encouraging the interviewee to reach out should they have any further questions or if they wish to share any additional information later. Finally, it is important to reiterate the confidentiality and non-retaliation commitments. 3.8 Stopping the Interview If an interviewee requests to stop the interview, the interviewer should immediately respect the request and pause the proceedings. It will thereafter be cru - cial for the interviewer to understand the underlying reason for their reluctance or inability to continue. For example, this could be due to factors such as discom - fort, fear of retaliation, or other personal concerns. Even after addressing the interviewee’s needs/con - cerns, if the interviewee explicitly refuses to contin -
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