INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
While there is nothing that expressly prohibits certain types of fact-finding, some such methods could be deemed inappropriate due to legal, ethical, or organi - sational considerations. For example, unauthorised surveillance of employees beyond what is legally per - missible, such as examining personal devices without consent or fact-finding methods that may involve dis - crimination based on protected characteristics, could be viewed as illegal and unethical. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter Protection of the Reporter/Complainant In cases of workplace sexual harassment of women, the PoSH Act specifies interim measures that may be taken during the pendency of an inquiry. These include: • transferring either party to a different workplace; • granting leave for a prescribed duration; or • restraining the respondent from evaluating the complainant’s performance. There are also strict confidentiality obligations under the PoSH Act. Similarly, under the Companies Act, 2013 (“Companies Act”), every listed company and certain other compa - nies are required to implement adequate safeguards to prevent victimisation of employees or directors who utilise the vigil mechanism. While the Companies Act does not explicitly spell out the specific protective measures, it requires companies to take reasonable steps to protect whistle-blowers from retaliation. Otherwise, there are no explicit legal provisions detail - ing the actions an employer must take during or after an internal investigation to protect the reporter. The measures an employer takes to protect the reporter/complainant are largely determined by the specific facts and circumstances of each case. For instance, if there are concerns that the respondent may interfere with the investigation or create a hostile or unsafe work environment for the reporter or other
employees, the employer might implement measures such as allowing the complainant to work from home, transferring either of them to a different location, pro - viding them with time off from work or, in more severe cases, suspension of the respondent. As a matter of prudence, the actions taken should be based on the potential risks involved. If there is a potential risk, it is pertinent that the employer takes that into account and takes reason - able steps to protect the reporter, to prevent any unto - ward incident, failing which, the employer could be held liable, including for negligence. While there are no potential adverse consequences for taking any measures to protect the reporter, in case such measures include suspension of the respondent, it shall be imperative for the employer to discharge all suspension-related obligations, including payment of subsistence allowance during the pendency of the investigation as per applicable statutes and company policies. Overall, it is essential for employers to take safety concerns seriously and act proactively to ensure a safe working environment and protect complainants/ reporters/whistle-blowers. 4.2 Protection of the Respondent While the principles of natural justice require a fair and unbiased process for all the parties involved including the respondent, as such, the law does not prescribe any specific measures that an employer needs to take to protect the respondent. Having said that, from the perspective of creating a safe environment for all employees, it is quite common for employers to have policies prohibiting retaliation against parties involved in an investigation, including the respondent. As provided for in the PoSH Act, employers are also expected to maintain confidentiality during investi - gations to protect the privacy of all parties involved. Accordingly, employers are free to obtain confidential - ity declarations from the parties involved in an investi - gation. Refer to 2.3 Confidentiality Agreements and NDAs regarding execution of NDAs.
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