India: Developments Affecting Diversity in the Workplace

When it comes to inclusivity and diversity within the workplace, companies operating in India now have to face and adhere to four major recent developments in the country’s employment law.

These four key developments have taken the form of:

  • Enhancement of their maternity leave benefit act
  • Protection changes within the workplace and its conditions mainly focusing on women working in the State of Maharashtra, the economic hub of Pune and Mumbai
  • New reporting requirements for specific companies regarding their efforts in sexual harassment prevention in the workplace
  • Decriminalization of same-sex private consensual sexual conduct between adults

 

Enhanced Maternity Benefit Act

The central government of amended the Maternity Benefit Act in 2017, in order to increase the number of paid maternity leave, women were offered. In an amendment to the Payment of Gratuity Act of 1972, along with a general increase of end-of-employment payment (called a “gratuity” under the law) from INR 1,000,000 ($13,521) to INR 2,000,000 ($27,042) paid to employees with at least five years’ continuous service, the maximum period of maternity leave that can be counted toward the five-year continuous service requirement was increased from 12 to 26 weeks.

The amendment brought about the following changes:

  • Women with less than two surviving children were now to receive 12 to 26 weeks of paid maternity leave
  • Women with two or more surviving children would continue to receive their customary 12 weeks.
  • Women who either have children through surrogacy or adopt children under the age of three months were now provided with 12 weeks leave.

On top of the changes in the number of paid leave weeks, the new amendments require any and all employers with more than 50 employees to provide daycare facilities within the workplace. These facilities are to work towards easing the transition for women coming back to work from their maternity leave.

More so, during or after this paid maternity leave, if these women’s work permit terms and conditions allowed them to work from home, the amendments support this move.

 

Protections for Female Workers in Maharashtra

Workplace conditions in the State of Maharashtra are governed by the Maharashtra Shops and Establishments. Recently, this law was revamped enforcing changes that touched on the working conditions of women in the following aspects:

a) Preventions of workplace sexual harassment

Amendments emphasized the need for employers to take strict action towards implementing the central legislation on Sexual Harassment of Women at the Workplace Act of 2013.  Under this law, employers can get the definition of sexual harassment and equips them with the necessary mechanisms to redress employee’s complaints on harassment. It requires that any company with more than 10 employees should have an Internal Committee dedicated to receiving and redress workplace sexual harassment complaints raised by women.

b) Working conditions requirements for employers

Among other things, an emphasis was put on the requirement for employers within this region to:

  • Maintain a complaint box
  • Display local police and women’s helpline numbers for anyone to reach out to
  • Avail proper illumination and lighting in all areas women employees often visit
  • For any business with more than 10 female workers, there needs to be a sufficient number of female security guards
  • Ensure that there are safe and separate washrooms for women

c) Daycare facilities

Any establishment with more than 50 employees is required to have daycare facilities for these employees’ children.

d) Night-shift work protection for women

For women working the night-shift between the hours of 9:30 pm and 7:00 am, the amendments prescribe specific working conditions for them. Particularly, an employer may require a woman to perform night-shift work only if:

  • She provides written consent to work the shift
  • There at least three women working that shift at all times
  • The employer provides safe doorstep transportation to and from the workplace
  • This law also prohibits women from working the night-shift 24 weeks prior to their giving birth.

e) Health, Safety, and Welfare Committees

Business owners with 100 or more workers are now required to create a Health, Safety, and Welfare Committee, with equal numbers of employer and worker representatives as members; a “sufficient number” these members should be women.

The duties and responsibilities of the committee include:

  • Surveying the establishment premise for accident prone zones
  • Rectifying these hazards
  • Conducting annual health and wellness camps
  • Spreading awareness of any epidemics and contagious diseases
  • Organizing educational and social awareness programs

 

Sexual Harassment Prevention Reporting Requirements

As of July 31, 208, companies with 10 or more employees are required to comply with the Prevention of Sexual Harassment Law’s requirement to create an Internal Committee and to disclose reports on their compliance. Failure to do so will lead to a minimum fee of INR 50,000 ($676) or worse, imprisonment.

The Government of India has also launched an online platform to receive sexual harassment complaints from women employees employed in both the private sector and the public sector, known as “She-Box” (Sexual Harassment Electronic Box). The government will review these complaints, forward them to the Internal Committees of the respective employers to investigate and monitor the employers’ efforts in addressing the complaints.

 

Decriminalization of Consensual Same-Sex Acts

The Supreme Court of India declared the unconstitutional Section 377 of the Indian Penal Code, 1860 (IPC) on Sept.6, 2018.  They emphasized the fact that homosexuals deserved their fundamental right to choose their sexual orientation, live without stigma, and benefit from equal protection under the law.

Following these changes, any employees discriminated against by their employers due to their sexual orientation could claim for a violation of the basic rights of freedom of expression. More so, gone are the days when employers feared being classified as having aided and abetted crimes by implementing affirmative action programs for members of the LGBTQ family. Employers can now freely include LGBTQ employees in their inclusiveness and diversity practices within the organization.

The landscape of India’s employment law is continuously changing and taking steps towards inclusivity and diversity for all within the workplace.

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