The issues in the case study: 1. Wrongful dismissal of Kalpana Dixit by her employer, the conduct of its officers and failure to take remedial action upon complaint. More specifically, wrongful actions based on biases and prejudices held about women, especially in the case of those returning to work after maternity.
2. Discrimination by Cyben, represented by Johri, in denying employment to Kalpana due to gender-related biases. More specifically, acting on one’s own biases and also on malicious and discriminatory representations made by Sundari Prakash in matters of employment.
3. Prakash’s statements to Johri about Kalpana aimed at not only damaging the latter’s reputation but also hurting her prospects of getting employment through misrepresentations — not just opinions — which Prakash had access to as an officer of Geffel Stace and as Kalpana’s supervisor.
The remedies:
1. The law pertaining to gender discrimination is spelt out clearly in the Equal Remuneration Act, 1976. It applies not only to matters of remuneration but also to recruitment and ‘any conditions of service subsequent to recruitment such as promotions, training or transfer’, though it will be a contentious issue whether Kalpana is a ‘worker’ under the Act. The issues mentioned under heads 1 and 2 are covered under the Act and there is a redressal mechanism including trial by a senior judicial officer and penalties of fine and imprisonment.
a) With respect to the charge of wrongful/constructive dismissaI, Kalpana could have filed a complaint against her ex-employer under this Act since the dismissal and the acts preceding dismissal come within the wide ambit of the phrase ‘any condition of service’. It can be argued that performance rating and allocation of work, etc., are ‘conditions of service’ that have been adversely affected owing to her gender. Wrongful dismissal by Geffel Stace could also come under the purview of the Shops & Establishments Acts, though the legislation is not uniform across states. For example: The A.P. Shops & Establishments Act provides for not only compensation on termination but mandates that the termination be made in writing and a copy of the letter be given to the inspector within three days.
The Bombay Shops & Establishments Act simply requires a notice of maximum of one month for termination. The Tamil Nadu Shops & Establishments Act and the Karnataka Shops & Establishments Act require that services be dispensed with only for a ‘reasonable cause’ and provide for right to appeal to the appropriate authority if the cause is not reasonable. Many employers still invoke the archaic principle of ‘employment at will’ to terminate employees at their whims and fancies. This principle maintains that an employee enjoys the right to employment as long as the employer wishes to continue the contract of employment and the services can be dispensed with at the will of the employer without assigning any reason.
In other words, it gives unbridled powers to ‘hire and fire’ under the contract of employment. Many countries have moved away from this principle in varying degrees and have placed reasonable restrictions on the right to terminate employees. In Kaplana’s case, given that three years have passed, it is doubtful — though not impossible — that action under any of the laws will be tenable. Even otherwise, Kalpana doesn’t appear to be keen to pursue this aspect!
b) With respect to denial of employment by Cyben and Johri on gender-related grounds, it amounts to blatant denial of equal opportunity. Kalpana has a strong case to initiate proceedings under the Equal Remuneration Act against Cyben and Johri. Though it is of academic interest to explore whether Geffel Stace can be roped in for willfully and maliciously perpetrating the discrimination started three years ago and for being instrumental in Cyben violating the law, it is unlikely to be accepted in a court.
c) Prakash’s culpability regarding statements she made to Johri is more contentious. No doubt, her conduct is unprofessional. However, there are no provisions under employment law or data privacy laws. Remedies are available by way of complaint for defamation under the Indian Penal Code or in the realm of civil law for private action for slander, that is, harming reputation through spoken word. The process and the outcomes in these two are different inasmuch as the former will lead to punishment and the latter to monetary damages. But these proceedings can be long-drawn and can further label Kalpana as a ‘difficult’ employee and, of course, the facts will have to be proved in court.
This also brings into focus the responsibility of employers and their officers regarding employee referrals. It is the implicit duty of the employer not to make misrepresentations or statements in bad faith damaging the reputation and employability of the employee.
Many states in the US have legislation governing this aspect. In the UK, there are case laws and executive notifications that set boundary conditions for employee references. While each legislation differs on what can be covered in a reference, most of them lay down that these have to be in writing, have to be based on facts and subjective assessment must be done in good faith. In some cases, the law insists that a copy of the written reference be provided to the employee; whereas in some cases it is treated as privileged and confidential communication unless done in bad faith.
Another aspect of relevance is to realise that the ex-employer also owes a duty to the prospective employer — where a reference is sought — to disclose accurate information and not suppress material information. In India there is no law governing the subject of employee references and the proposed Privacy (Protection) Bill, 2013 is also silent on this matter. The only distantly-related requirement is that of providing a ‘service certificate’ under Shops & Establishment Acts mentioning the tenure, last designation and, in some cases, reason for leaving. This is a mere formality since, as a practice, most employers prefer to take resignations even in cases of termination for misconduct, redundancy or non-performance ostensibly to help the employee find another job but in reality to avoid possible legal complications.
Some progressive organisations have policies detailing who can give reference, what matters can be covered and how is the reference to be given. In spite of this, the practice of informal reference checks is quite prevalent and it affords miscreants like Prakash an avenue to take their ire against whom they are prejudiced. HR heads play an important role in sensitising the employees and officers of the company about principles of referrals and setting a proper governance framework.
2. Kalpana also has the option of invoking the writ jurisdiction of the Supreme Court under Art. 32, as was done in Vishakha’s case, and seeking the court’s intervention in directing the state to evolve a comprehensive framework governing employment in the private sector including discrimination of various kinds in all aspects of employment including performance management, terminations, employee references, etc. It should be mentioned here that in Vishakha’s case the Supreme Court went beyond classical confines and held that the protection of Fundamental Rights especially Article 14, 15, 19 (1) (g) and 21 are available even to those in private employment. Gender discrimination is definitely a malaise affecting India Inc. but there are other forms of discrimination on grounds of religion, race, education (premier versus non-premier institutes!) and other personal biases that are lurking deep within and affecting the working environment in the private sector.
Similarly, the existence of the archaic principle of ‘employment at will’ is wreaking havoc not only on the morale and ‘engagement’ of a large part of the workforce but also on corporate performance and governance as well. If India Inc. is serious about institutionalising a culture of diversity and inclusion, it is imperative they put in place a governance framework eliminating all kinds of discrimination in all aspects of employment. Unless employees in the private sector, who are outside the purview of stringent laws like the Industrial Disputes Act, are assured of a modicum of organisational justice, not only will employee morale be affected but organisations will be exposed to business risks.
Maybe Kalpana Dixit vs. state of ABC will prove to be another landmark judgement ala Vishakha vs state of Rajasthan that would re-define employment jurisprudence of this country. Is it an easy route? No. But all epochal changes have been brought about by the courage and perseverance of individuals like Kalpana to put an end to the krurta perpetrated by Akrur Johris!
The writer is a lawyer-turned HR professional. In the past, he has worked in companies such as Microsoft, Murugappa Group, Citibank, Microsoft and HUL. The views expressed are personal
(This story was published in BW | Businessworld Issue Dated 29-06-2015)
