INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
The Transgender Protection Act and the Disabilities Act prohibit discrimination against transgender per - sons and based on disability. The HIV & AIDS (Prevention and Control) Act, 2017 explicitly prohibits discrimination against individuals living with HIV in the workplace, besides promoting awareness and sensitivity amongst employees. Discrimination against pregnant employees is prohib - ited under the Maternity Benefit Act, 1961. According - ly, female employees cannot be discriminated against or removed from employment during their maternity period. Additionally, harassment based on gender identity or sexual orientation is protected under rulings like Navtej Singh Johar v Union of India , which decriminal - ised homosexuality and recognised LGBTQ+ rights. Employers are also obligated to create inclusive work - places by mandatorily adopting and framing equal opportunity policies and implementing appropriate grievance redressal mechanisms to address discrimi - nation claims arising therefrom. Although Indian law does not explicitly define “bully - ing” or “mobbing” as standalone terms, such conduct may fall under broader harassment laws. Certain legal provisions and workplace policies offer protections against such behaviour when it results in harassment or discrimination. For example, the Standing Orders Act allows for disciplinary action against employees engaging in misconduct, including verbal abuse or creating a hostile work environment. 8.4 Criminal Cases In India, if the internal investigation discovers the com - mission of offences that are mandatorily reportable under Indian criminal laws, such as rape, then the same may have to be reported to the relevant authori - ties. In other cases, although the conduct discovered may amount to a criminal offence (eg, fraud or financial impropriety), the employer may decide whether to file a criminal complaint before the appropriate authority.
In case criminal charges are filed during the pendency of the investigation, judicial precedents have held that both proceedings can take place simultaneously. The employer also has the option to stay the investiga - tion for a reasonable period until the conclusion of the criminal proceeding having regard to the specific factual matrix of the case. 8.5 Multi-Jurisdictional HR Internal Investigations In case of multi-jurisdictional internal investigations, due adherence to laws in the respective jurisdictions, including labour laws and privacy laws, will need to be ensured. This includes compliance with the General Data Protection Regulation (GDPR) in the EU or similar laws in other countries. When sharing data across borders, stakeholders must ensure adherence to applicable data protection laws and obtain necessary consents from the concerned parties. Legal counsels in each jurisdiction may have to be engaged to understand the legal implications and compliance requirements. (Refer to 7.2 Specific Rules for more details on cross-border transfer of data.) While there is no specific law that prohibits foreign employers from carrying out internal investigations within India, the general preference is to have repre - sentatives at the ground level within the concerned jurisdiction to understand the cultural background better and to ensure that due compliance under appli - cable local laws is maintained. As such, there is no requirement under any applicable labour laws in India that the investigation officer must necessarily be employed with the Indian employer (except in the case of PoSH matters, where the ICC members are expected to be employees of the com - pany in India). In terms of whether or not such officer needs to be physically located in India, the location should not matter so long as they are able to conduct the investigation effectively by considering the legal and cultural context of the workplace.
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