INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
While there are no adverse consequences as such for taking steps to protect a respondent from retalia - tion, in extreme cases leading to severe misconduct or harm, failure to take necessary steps by the employer could expose the employer to legal liabilities. It could also adversely affect employee morale and the public perception of the employer, which could, in turn, have long-term effects on business operations. 4.3 Measures Against the Respondent Disciplinary Actions Before Concluding an Investigation While an employer may take interim measures during the pendency of an internal investigation (see 4.1 Pro- tection of the Reporter ), disciplinary/punitive action against the respondent for “misconduct” can be taken only once the disciplinary inquiry process has con - cluded and the misconduct has been established in such inquiry. Employers will need to be cautious about taking dis - ciplinary actions prior to completion of the investiga - tion, as this could expose them to legal challenges for non-compliance with the principles of natural justice, wrongful termination, or otherwise. 4.4 Protection of Other Employees While there is no specific legal mandate that an employer needs to take actions to protect other employees during the course of an investigation, the employer may take whatever action is reasonable in view of the gravity or seriousness of the matter. For example, if the matter pertains to workplace safety, it is better to err on the side of caution and initiate appropriate steps to ensure the safety and wellbeing of its employees, failing which, depending on the facts and circumstances of each case, the employer could be exposed to legal, financial, and reputational risks. 5. Procedural Requirements and Proof 5.1 Requirements Procedural Guarantees Owing to the highly subjective nature of the investiga - tions, there is no set mechanism or strict procedure
under law which needs to be adhered to, for conduct - ing such investigations. While the law does not prescribe any specific pro - cedural guarantees or minimum requirements for an internal HR investigation, an investigation/inquiry conducted under the PoSH Act and/or a discipli - nary inquiry conducted by an employer in an alleged instance of misconduct, will need to follow the due process under law which, inter alia, requires the sexual harassment complaint or the charges levelled against the respondent to be shared with the respondent, allowing the respondent an opportunity to respond to such allegations in writing. Both the complainant and the respondent should also have the opportunity to appear before the ICC or the inquiry officer (as the case may be), to present their side of the story, submit evidence and call witnesses. The findings of the inquiry also need to be communi - cated to the parties along with the actions taken pur - suant to the findings. The PoSH Act also prescribes a 90-day timeline for completing the inquiry. (Refer to 6.1 Deciding to End an HR Internal Investigation for further details.) While these procedural guarantees/minimum stand - ards do not strictly apply to other types of HR internal investigations, many of the principles such as fairness, confidentiality, and the right to be heard are applicable to other investigations as well. It is advisable that employers adopt a consistent approach to handling HR investigations as it not only protects the rights of all individuals involved, but also helps mitigate legal and reputational risks for the organisation. 5.2 Internal Regulations In India, employers can and often should formulate protocols or internal guidelines for conducting inter - nal investigations as it helps ensure compliance with legal requirements, promotes fairness and protects the rights of all parties involved. In fact, many employ - ers in India, especially the larger ones and those in the regulated industries, have established detailed inves - tigation protocols, as they help manage workplace issues effectively.
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