The labour and employment law space saw some key developments with states issuing guidelines on preventive measures to combat rise in Covid-19 cases. The Supreme Court’s judgement holding that no individual may be forced to get vaccinated resulted in several states withdrawing vaccine mandates. In this update, we discuss these developments along with the Chennai Labour Court’s ruling on the reinstatement of a workman, the Gujarat High Court’s decision on the procedure of inquiry conducted in prevention of sexual harassment (POSH) cases and changes in Tamil Nadu regarding opening of shops and establishments 24x7 and in Uttar Pradesh, where women are now allowed to work in factories at night as well.
Supreme Court rules that no individual should be forced to get vaccinated against Covid-19
On 4 May 2022, the Supreme Court, in the case of Jacob Puliyel v Union of India, held that no individual should be forced to get vaccinated against the Covid-19 virus. As Covid cases were low when the ruling was passed, the Court observed that the orders passed by the government limiting access of unvaccinated individuals to public places, services, etc., were disproportionate and should be recalled. It was clarified that the Court’s view was based on the current situation and did not limit the legislature’s right to take suitable measures for the prevention of infection and transmission of the virus. Based on this ruling, several employers revaluated the vaccine mandates stipulated by them.
State governments issue new orders pertaining to Covid-19
Towards the latter part of the first quarter, the country witnessed a decline in the number of cases resulting in the lifting of restrictions and consequent relaxations being issued by the central and state governments. However, the second quarter saw a slight increase in Covid-19 infections and resultantly, various state governments issued new orders containing preventive measures.
Key highlights of state orders
- Maharashtra: The Maharashtra government issued a mandate on 3 June 2022 that masks in closed public spaces like trains, buses, offices, etc., are a must. That said, the state health minister clarified that this is a strong recommendation but not mandatory.
- Karnataka: The Karnataka government issued a circular dated 28 June 2022 providing guidelines for Covid-19 related practices to be followed in offices, apartments, etc. With respect to offices, the circular provides that it is compulsory to wear masks and maintain physical distancing. Symptomatic employees should not attend office and must take a Rapid Antigen Test. If found positive, they should isolate and follow protocols. If found negative, they should give a sample for an RT-PCR test, isolate until the result comes and act appropriately. The circular clearly provides that there is no need to close offices at the moment.
- Tamil Nadu: In its order dated 26 June 2022, the government of Tamil Nadu prescribed measures such as maintaining social distancing, wearing masks, etc. The order also stated that authorities will levy penalties if masks are not worn in public places.
- Telangana: The government of Telangana reintroduced guidelines requiring employees to maintain adequate physical distancing in the workplace. Further, employers are required to provide soap and hand washing facilities/sanitisers in offices.
Labour Court orders reinstatement of employee dismissed 7 years ago
On 8 June 2022, the Principal Labour Court in Chennai, in the case of Thirumalai Selvan Shanmugam v Tata Consultancy Services (TCS), found the termination order issued by TCS to an employee illegal. Employers are legally obligated to follow the process prescribed under Section 25F of the Industrial Disputes Act, 1947 (ID Act) to unilaterally terminate ‘workman’ level employees. This involves providing retrenchment compensation, following procedural requirements, etc. These conditions need not be followed to terminate non-workmen – i.e., persons in a supervisory or managerial capacity. In the present case, TCS had terminated Mr. Selvan’s employment in 2015 without complying with the procedure under the ID Act since he occupied a managerial position and did not fall within the category of a ‘workman’. Mr. Selvan challenged his termination, contending that as an ‘Assistant Consultant’, he was carrying out skilled, technical, clerical work and hence would be construed as a ‘workman’. After examining his role and responsibilities, including the semantics of the phrases in his list of responsibilities, the Court concluded that Mr. Selvan was indeed a ‘workman’. Given that retrenchment compensation was not paid to Mr. Selvan, the termination order was held to be illegal. Accordingly, the Court directed TCS to reinstate Mr. Selvan with continuity of service, back wages and attendant benefits.
While this ruling merely reiterates the position taken by the courts in the past, it reminds employers to be better prepared and structured in their approach for performance-related termination or large-scale exits.
Tamil Nadu Government extends notification allowing 24x7 operations of shops and establishments
On 5 June 2019, the Tamil Nadu government issued a notification allowing all shops and establishments employing ten or more persons to remain open 24x7 on all days of the year, subject to certain conditions. This exemption has now been extended for another three years allowing establishments to remain open on 24x7x365 basis till 5 June 2025, subject to certain conditions:
- Employees should be given one weekly holiday on a rotation basis;
- The working hours of employees should not exceed eight hours in any day and 48 hours in any week.
- The period of work, including overtime, must not exceed ten and a half hours in any day and 57 hours in a week (this conflicts with the existing provision under the Tamil Nadu Shops and Establishments Act which stipulates that the total overtime work in a week should not exceed 54 hours);
- Written consent from women employees should be obtained if they are required to work after 8.00 pm and before 6.00 am. Adequate protection and transport arrangements should also be provided to them;
- Wages and overtime pay should be credited to the savings account of employees;
- Restroom, washroom, safety lockers and other basic amenities should be provided to employees; and
- An internal committee, as prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), should be constituted.
The notification also prescribes penal action against the employer/manager for violating its provisions.
Uttar Pradesh renews exemption allowing women employees to work in night shifts
The government of Uttar Pradesh had previously issued a notification in August 2015 permitting women employees to work in night shifts until August 2018, subject to certain conditions. Subsequently, it amended the restrictions regarding night work in 2018, however women employed in factories were restricted from working in night shifts. On 27 May 2022, the state government issued a new exemption allowing women in all factories in the state to work 24x7, subject to certain conditions. The key requirements for availing these exemptions are:
- Employers need to obtain the written consent of women employees;
- Women employees cannot be terminated if they refuse to work in night shifts;
- Employers shall provide women employees working during the night shift with basic amenities such as food, free transportation and other prescribed facilities;
- If employers require women to work in night shifts, a minimum of four women workers should be engaged;
- Employers should take appropriate steps to prevent sexual harassment and maintain the complaint mechanism prescribed under the POSH Act.
The notification further prescribes that women workers should be made aware of their rights listed in the notification and the permission will deemed to be cancelled automatically on violation of any of the prescribed conditions.
Gujarat High Court rules on the conduct of Internal Committee proceedings in POSH case
The Gujarat High Court, in the case of Vimalkant Bhanuprasad Shrimali v IDMC Limited, upheld the termination of the petitioner for charges of sexual harassment brought against him under the POSH Act. In the present case, the accused-petitioner employee challenged his termination order. He argued that the inquiry carried out by the Internal Committee (IC) was against the principles of natural justice and he was not given a fair hearing. After assessing the process followed, the Court held that the procedure adopted by the IC was not violative of the principles of natural justice since the petitioner was given adequate opportunity to submit replies against allegations, documents, etc., but refused to submit any written questions. The Court also considered the fact that the petitioner was compelled to leave his previous employment due to similar allegations levelled against him. The Court was of the view that since the petitioner is guilty of sexual harassment and was compelled to leave by his previous employer for similar conduct, it was incumbent on IDMC Limited to not retain him as an employee.
The quarter ended with several news reports speculating that the Labour Codes (Codes) would be implemented on 1 July 2022, but the Central government has not yet issued any such notification. While several states like West Bengal, Meghalaya, etc., are yet to finalise the draft rules under the Codes, the Central Government seems keen to implement the Codes as soon as possible. Organisations should actively plan to assess the impact of the Codes on their existing human resource and compensation practices and policies, in preparation for the implementation of these Codes in the near future.