WorkCareerExpert Talk: Lawyer Shruti Swaika Wants You To Know About Laws Protecting...

Expert Talk: Lawyer Shruti Swaika Wants You To Know About Laws Protecting Women At The Workplace

Women have faced some unique, prejudicial challenges, be it societal, personal or professional. In modern times, as more and more women enter various workspaces and take up jobs in several different sectors, their chances of facing discriminatory and predatory behaviour has increased.

A lawyer by profession and Principal Associate at Fox & Mandal, Shruti Swaika is here to explain the importance of knowing your rights at the workplace and how to exercise these, if and when needed. Knowledge is power, especially when this knowledge can enable you to help not just yourself, but also other women who may be unaware or in a position less favourable than your own.

What are the overarching rights of working women under Indian laws?

Over the years, several enactments have been passed for the welfare of the working people and the protection of Indian employee rights. Some of these enactments carve out special provisions for the women workforce. Here are the laws every woman needs to know and familiarise herself with to improve and protect her position in the workforce:

The Maternity Benefit Amendment Act, 2017

A maternity benefit Act stipulates that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the daily wage rate for the period of her actual absence

This Act was enacted on 12th December 1961, to regulate the employment of women in certain establishments for certain periods before and after child-birth, and to provide for maternity benefit and certain other benefits.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“SHA”)

India finally enacted its law on prevention of sexual harassment against female employees at the workplace in 2013. The statute was enacted almost 16 years after the landmark judgment of the Supreme Court of India, in the matter of Vishaka and others v. State of Rajasthan (“Vishaka Judgment”). 

The Vishaka Judgment laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to sexual harassment at work and enforce the right to gender equality of working women (“Guidelines”).

The Complainant has the option to file a written complaint to ICC/LCC. Either she can demand an enquiry into the matter or choose to conciliate. In the case of the former, the Complaints Committee has to conduct a detailed investigation within the workplace and declare their judgement along with the recommendations to the employer. The Complaints Committee has the discretion to suggest the penalties after having heard both the parties. Any aggrieved Party also has a right to appeal against the order of the ICC/LCC for further reliefs under this Act.

The Factories Act, 1948 (“Factories Act”)

The Factories Act aims at protecting workers employed in factories from unfair exploitation by their employers. The Factories Act also has exclusive provisions for women workers.

  1. No woman worker shall be allowed to work in a factory except between 6 a.m. and 7 p.m. The State Governments may by notification vary the limits as set out in this point, but in no circumstance will women employees be allowed to work between 10 p.m. and 5 a.m. 

On 1st December, President Pranab Mukherjee gave his assent to the Maharashtra Factories (Amendment) Bill, 2015, wherein, amongst other amendments, it is allowing women to work in factories in night shifts. With this amendment, it also makes it mandatory for factory management to ensure the security of women working night shifts.

  1. The shift timing of a woman worker cannot be changed except after a weekly holiday or any other holiday. Hence, women employees are entitled to get at least a 24-hour notice for their shift timing change.

The Factories Act also stipulates the employers employing 30 or more women workers to provide for cheches for children of the women workers, aged 6 years and below.

The Equal Remuneration Act, 1976: Article 39

Our Constitution directs that States shall, in particular, have policies towards securing equal pay for equal work for both men and women. Under the Equal Remuneration Act:

  1. Employers shall pay equal remuneration to its male and female employees who are carrying out the same or similar work.
  2. Employers cannot discriminate between men and women while recruiting unless there is a restriction under the law to employ women in certain industries (Landmark case: Air India v Nargesh Meerza, Air 1981 SC 1929)

Apart from the laws discussed above, there are other laws for the welfare and safeguard of employees. 

Additionally, women employees must also be aware of various enactments which provide for social security for employees such as: 

  1. Employee’s Provident Fund & Miscellaneous Provisions Act, 1952
  2. Employee’s State Insurance Act, 1948
  3. Payment of Gratuity Act, 1972
  4. Payment of Bonus Act, 1965

What are some women-centric changes in Indian laws &
how have they helped women?

In India, the constitutionally guaranteed equality for women is often contradictory to the harsh social reality of the land and its cultural norms. 

In 2013, India adopted its first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) enacted by the Ministry of Women and Child Development, India. Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India. 

The POSH Act had been enacted with the objective of preventing and protecting women against workplace sexual harassment (which include the creation of a hostile work environment) and to address complaints of sexual harassment.

2017 witnessed the bold amendment to the Maternity Benefit Act, 1961 (“Maternity Act”).

Here are the specifics:

  • The Maternity Amendment extends paid maternity leave for women employees with less than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks. 
  • A maximum of eight (8) weeks can be taken before the expected delivery date and the remaining after childbirth. 
  • Women expecting their third child were also provided with the right to take twelve(12) weeks of paid maternity leave—six (6) weeks before childbirth and six after.
  • The Maternity Amendment also provided for mothers adopting a child below three months of age, or “commissioning mothers” to take twelve (12) weeks of maternity leave from the date of receiving the child. 
  • The Maternity Amendment enables mothers to work from home after completing twenty-six (26) weeks of leave subject to their work profiles and the employer’s consent. 
  • The Maternity Amendment also mandates establishments employing 50 or more employees to have a creche which is required to have prescribed facilities and amenities. Women employees have a right to visit the crèche four times a day, including during their rest interval.

Company Law provides for reservation of women Directors on boards of all public companies. All public companies must have at least one woman director. Although most companies fulfilled this requirement by having puppet women directors, it has still given women a foot in the door in as much as listed companies make an effort to not have simply a puppet director. It has also helped women follow how companies function at the board level, even though they are still seldom part of any real decision-making process. 

These are tiny steps, but steps nonetheless. The Indian Institute of Corporate Affairs also takes active steps now in skilling women so they can have a greater contribution at the Board level.

A major breakthrough for women in joint family business also happened in 2016 when the Delhi High Court conclusively decided that women can become karta in a HUF. Although the Hindu Succession Act, 1955 was amended in 2005 to give daughters the same right as sons, as a practice it was still the eldest son who would be the karta of the HUF. 

It was in the judgement of Sujata Sharma v. Manu Gupta that the Delhi High Court laid down that since both daughters and sons have equal rights as coparceners, it is the eldest child who becomes the karta and not the eldest son. This is a landmark judgement, still not known well enough, which has the potential to give immense power in the hands of women. 

The most recent judgement where this time, the Supreme Court has upheld the position of women, is in the case of Vineeta Sharma v. Rakesh Sharma, decided on 11th August 2020. Cementing the fact that daughters and sons are equal, despite when they were born, whether they are married or not, whether their father passed away prior to the 2005 amendment or not, the Supreme Court, quoting a 1996 judgement, stated that “A son is a son until he gets a wife. A daughter is a daughter throughout her life”. 

Needless to say, this judgement does not bestow greater rights on the daughter than on the son but enshrines her equal rights.

Women’s Reservation Bill or the Constitution (108th Amendment) Bill, is a pending bill in India which proposes to amend the Constitution of India to reserve 33% of all seats in the Lower House Lok Sabha, and in all state legislative assemblies for women.

How can women address discrimination & unjust termination in the workplace?

Where a woman absents herself from work in accordance with the provisions of Maternity Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. Also with the latest amendments, a woman is allowed to work from home if nature of work is such where women and employer agree on her condition working from home.

With respect to discrimination, Article 14 of the Constitution can be invoked and various other sections which are mentioned above can be invoked. According to the Workmen’s Compensation Act 1923, (section 3), it is unlawful to dismiss or terminate any employee for a disablement (temporary, partial and total) caused by an injury during the course of employment. Provided that injury out of an accident should result in the total or partial disablement of the workmen for the period exceeding three days.

The employer is not liable to pay any compensation to the employee in case the accident was caused due to:

  • The contributory negligence on the part of the employee when they were under the influence of drink or drug and the time of the accident
  • The willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman or
  • The willful removal or disregard by the employee of any safety guard, or other devices which he knew to have been provided for the purpose of securing the safety of the employee

Amount of compensation to injured workmen shall be payable as mentioned in the (section 4) of Workmen’s compensation act 1923.

If there is discrimination based on gender, race, religion, caste, etc at work which leads to the termination of an employee, then that would amount to unfair dismissal. For instance, if the employee gets the boot because of displaying his religious beliefs in his appearance, the employer cannot terminate citing the code of conduct.

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