Introduction:
Employees have always been vulnerable at the hands of their employers therefore it became imperative that there should be laws to protect them from the exploitative behavior of their employers. Some of the problems that have been faced by employees are non-payment of fair salary, unavailability of maternity benefits, sexual harassment at the workplace, non-payment of wages for overtime, termination without advance notice and not having access to taking leaves. This is why a need arose for Employment Protection Laws which would protect the rights of the employees. These laws are a great shield for the employees to protect themselves from the exploitative practices of their employers.
Employment Protection Laws
India
1. Industrial Disputes Act, 1947
The main objective of this act is to prevent and reduce disputes between employers and their employees and its provisions deal with the fair dismissal of employees. During industrial disputes, the employees and employers resort to strikes or lockouts which must be legal. Under S.25C, “a workman who has been laid off has the right to compensation.” Under S.25F (b), “the workman has to be paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average payfor every completed year of continuous service or any part thereof in excess of six months.”
Under S.25M, “the employer of an industrial establishment cannot lay-off any workman who is not a badli or casual workman, and whose name is borne on the muster rolls of the establishment, without the prior permission of the appropriate government.” Under S.25F, “the employer of certain industrial establishments cannot retrench an employee who has been in continuous service for not less than one year without giving him a three months’ notice with wages and without prior permission of the appropriate government.” On contravening the provisions of the act penalties by way of imprisonment or fines or both have been prescribed in S. 26- 31 of the Act.
In, Municipal Corporation of Greater Bombay V. Labour Appellate Tribunal of India[1], the question of retrenchment was examined. Here, a show-cause notice had been given to the claimant by the Appellant company and in the inquiry, it had been established that there was misconduct on part of the claimant. It was held by the Bombay High Court that there was no retrenchment in this case because the services of the claimant had been terminated owing to misconduct in disciplinary proceedings.
2. Minimum Wages Act, 1948
This act was passed shortly after India gained independence from the British who had framed laws which provided less wages for more work. Thus, for protection of the rights of the labourers it was imperative to pass the Minimum Wages Act.
Under S.3 of the act the ‘appropriate government’ constituting of state and the central government has the right of fixing minimum wages. Under S.3(2), “the appropriate government may fix a minimum rate of wages as a minimum time rate, minimum piece rate, guaranteed time rate, and overtime rate.” Under S.3 (1) (b), “the appropriate government has the duty to review at such intervals, as it may think fit, such intervals not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates, if necessary.”
Section 7 of this act provides for an “Advisory Board” which advises “the appropriate government generally in the matter of fixing and revising minimum rates of wages.” Section 11, “states that the wages shall be paid in cash. If customary, the payment is done either wholly or partly and the government through a notification in the official gazette shall enforce it.” Under S.22, “if there is non-payment or under-payment of minimum wage then the employer will be punishable with imprisonment up to 5 years and a fine up to 10,000 is the maximum punishment that can be awarded. “
In V. Unichonoy V. State of Kerala[2], the constitutional validity of this act was challenged. The question before the court was, “that, can a state be prevented from making any law, in the interest of general public, where it creates restrictions and interferes to some extent with the freedom of trade or business guaranteed under Article 19(1)(g), of the Constitution of India”, and it was held that, “Fixation of minimum wages is for preservation of public order, and if no minimum wage is fixed then it shall lead to arbitrariness by the employers and that shall lead to clashes of interest between employer and labor which shall cause friction in society.”
3. Maternity Benefits Act, 1961
The main aim of this act is the protection of the rights of women during pregnancy and childbirth by providing paid maternity leave. It applies to all establishments with ten or more employees. However, in 2017 significant amendments were made to the 1961 act.
Under S.5(3), “the maximum period that a woman shall be entitled to maternity leave is between 12 to 26 weeks.” S.4(2) states, “in case of miscarriage no woman shall work in the establishment six weeks from the date of miscarriage.” S.12 states that, “there can be no dismissal or discharge while she is on maternity leave.” Under S.5(5), “woman is entitled to work from home if the nature of work allows.” S.11A(1) states, “that a creche facility must be made available with 4 times daily visiting rights in an establishment having 50 or more employees.” Under S.11A(2), “at the time of employment women have to be educated about maternity benefits available to them.”
In Anshu Rani vs State of UP And 2 Others[3], the petitioner had applied for 180 days of maternity leave but was only granted 90 days without any substantiation from her employer. The court was in favor of the petitioner since the Amendment Act of 2017 had been “adopted by the State of UP” and that the court itself had in its previous judgments “directed the State Government to grant maternity leave to all female with full pay of 180 days, irrespective of nature of employment.”
4. Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The objective of the act as mentioned in its preamble is “to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment.” S.3 states “that no woman shall be sexually harassed at workplace” and defines what amounts to “sexual harassment which includes implied or expressed promise to preferential treatment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.” Ss. 4 and 6 provide for establishing “Internal Complaints Committee (ICC) and Local Complaints Committee (LCC) respectively.”
S. 9(1) requires the aggrieved woman to make a written complaint to the ICC or LCC (if the complaint is against her employer) within three months from the date of the last incident. S.9(2) states “that where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.” S.15 provides “compensation to the aggrieved woman.”
In Vishakha and Others v. State of Rajasthan[4], the Supreme Court recognized the critical nature of sexual harassment of women in the workplace and put forth “guidelines in which it was compulsory for employers to prevent the commission of acts of sexual harassment and provide procedures for the resolution, settlement or prosecution of acts of sexual harassment.” These guidelines were to be “strictly observed in all workplaces for the prevention and enforcement of the right to gender equality of the working women.”
5. New codes passed in 2019 and 2020:
The Central government has passed a set of four codes which shall amalgamate as many as 44 Central Labour Laws.
- The Wage Code, 2019: Merging 4 legislations and it aims at monitoring in all employments the wages and bonus payments. Its Key-provisions are
- Simplification of the definition of the term ‘wage’.
- Minimum Wage is ascertained by fewer factors such as place wherein employee is employed and his skills.
- Homogeneity in coverage and payment.
- Wages fixed by the state government to be higher than the national floor rates fixed by the federal government.
- The Industrial Relations Code, 2020: The key provisions of this code are:
- In place of 100 workers standing orders will now apply to establishments having 300 workers, at least.
- In place of 100 workers, the government’s approval in matters of retrenchment and lay-off will now be required for establishments having 300 workers at least.
- Increased constraints on the right to strike of the workers.
- Social Security Code, 2020: The key provisions of this code are:
- Construction, inter-state, film-industry workers to be added in the term employees.
- A fine of rupees 50,000 to be levied for unlawful reduction in the employee’s wages without imprisonment.
- Social security funds to be arranged for workers of the unorganized sector, gig workers, and platform workers.
- Make recommendations for the establishment of a National Social Security Board whose prime duty is to frame policies for the unorganized workers, platform workers, and gig workers.
- Occupational Safety, Health and Working Conditions, 2020: The key provisions of this code are:
- For establishments that use power, the definition of the factory has been widened to include 20 workers and in the case of establishments that do not use power, it has been widened to include 40 workers.
- 8 hours per day has been made the maximum per day working hour limit.
- Employment in all establishments will be made available to women and in case of hazardous circumstances the employer is bound to provide them with appropriate safeguards.
- Interstate migrant workers are those workers that earn more than 18,000 rupees every month and can avail of several benefits such as insurance, provident fund, and public distribution system.
These codes will be enforced by the Central Government by December, this year.
The United Kingdom
1. Employment Rights Act, 1996
This law enumerates the rights of employees during times of unfair dismissal, dismissal, redundancy, and the like. Under S.1(2) of this Act, “the main terms between the employee and employer must be recorded in writing and given to the employee within two months of starting employment.” Employees are entitled to receiving paid leave on days of public duties such as jury duty.
Under Section 86 of the Act, “reasonable notice has to be given before the termination of the contract of employment and applies both to the employee and the employer. Based on the duration of employment of the employee a reasonable notice is given. If the employee has worked for more than one month then a minimum notice period of one week, if after 2 years of service then two-week notice and a maximum of twelve weeks’ notice can be given.” However, the employer can also issue “pay in lieu of notice”, if this is mentioned in the employee’s “contract of employment.”
Section 135 of the Act gives an employee a “right to compensation if his or her job becomes obsolete or redundant provided he has worked under the employer for a specified duration(two years) to become an established employment.” Section 94 of the Act states that the employee has the right against being unfairly dismissed. An employer must specify the reason that resulted in the employee’s dismissal. “Dismissals related to the following are considered automatically unfair: health and safety concerns, assertion of statutory rights, request for flexible working.”
R v. Secretary of State for Employment ex parte Seymour-Smith and Perez (No.2)[5] – In this case, the length of qualifying service (a period of two years) required before an employee is entitled to claim unfair dismissal was challenged on the ground that a comparatively smaller proportion of women could qualify than men. It was accepted by the House of Lords that significantly fewer women worked enough to be protected. Nonetheless, “it accepted that, at that point of dismissal (1991), the two-year qualifying period was justified to help to create employment opportunities and to counter any reluctance of employers to take on staff. Subsequently, the qualifying period was reduced to one year from June 1999, but controversially increased again to two years in April 2012.”
2. National Minimum Wages Act, 1998
The main objective of this act is to make sure that a worker is paid at least the national minimum wage. Under S. 1(2), “A person qualifies for the national minimum wage if he is an individual who is a worker, is working or ordinarily works, in the United Kingdom under his contract and has ceased to be of compulsory school age.” Under S.1(1), “A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.”
The national minimum wage fluctuates so as to keep income in congruence with inflation. Mentioned below are the rates in effect since April 2020.
| Age Range | Current rate |
| 25 and over | £8.72 |
| 21 to 24 | £ 8.20 |
| 18 to 20 | £6.45 |
| Under 18 | £4.5 |
| Apprentice | £4.15 |
The minimum wage rates are reviewed annually and usually change in the month of April in case of a rise in them.
Under Regulation 14 of the National Minimum Wage Regulation, 1999 the method of determining the national minimum wage is given which is dividing the remuneration for the pay reference period by the number of hours worked. Regulation 38 of the National Minimum Wage Regulation, 1999 states “that the employer of a worker who qualifies for the national minimum wage shall keep in respect of that worker records sufficient to establish that he is remunerating the worker at a rate at least equal to the national minimum wage.”
Under S. 17 of the National Minimum Wages Act 1998, “the entitlement to a National Minimum Wage is implied by the contract of employment.” Thus, if the employee is not paid at the least the national minimum wage for work done by him then a claim can be filed in the civil courts or employment tribunal for breach of contract or rather more specifically for an unauthorized deduction from wages.
If an employer does not pay the national minimum wage, then a complaint can be filed by the employee against the employer for investigation at Her Majesty’s Revenue and Custom (HMRC) and could be done anonymously. A notice of arrears and a penalty for not paying the correct rate of pay can be sent by the HMRC to the employer if he has not paid the correct rate. Employers can also be taken to civil court for not paying the National Minimum Wage or National Living Wage. “The maximum fine for non-payment is £20,000 per worker.” Employers who fail to pay can be named publicly and banned from being a company director for up to 15 years.
Annabel’s (Berkley Square) Ltd and Others v. Revenue and Customs Commissioners[6] – The question before the court was court whether tips paid at a restaurant (a credit card or cheque) which became the employer’s money could count towards the minimum wage when paid on to the employee. It was contended by the Revenue commissioner that “the money received by the troncmaster was done independently and not on behalf of the employer and thus could not count toward the minimum wage calculation.” Here, “the employer’s appeal failed since the court held that the sum paid by the troncmaster was not the employer’s money because, at the point of payment, what was paid to the employee was money forming part of a fund constituting in equity the employees’ commonly owned property. The employer could not claim that it paid the relevant money to the employee because it was not its money that was so paid.”
3. Maternity and Parental Leave etc. Regulations,1999 and The Paternity and Adoption Leave Regulations 2000
The 1999 resolution enumerates the leave rights of parents in the UK. Under regulation 7, “an employee is entitled to a paid ordinary maternity leave of 18 weeks provided she has notified her employer at least 21 days prior.” Under regulation 5, “an unpaid additional leave for a period of 29 weeks is available if she has worked at the business for more than 1 year.” Under regulation 11(1), the employee must give notice at least 21 days prior in case she intends to return earlier than the ordinary maternity leave period. Under regulation 13(1) and 14(1), “an employee is entitled to parental leave if he has been continuously employed for a period of not less than a year and has, or expects to have, responsibility for a child and this leave is of 13 weeks in case of an individual child.” Under regulation 19 (c), “the parent is not entitled to parental leave after the adopted child completes 18 years of age.”
The Paternity and Adoption Leave Regulations 2002 gives “eligible employees the right to take either one week or two consecutive weeks’ leave within 56 days of a child’s birth or placement for adoption. The entitlement is the same regardless of whether it is a multiple birth or adoption.”
In Lyons v DWP Job Centre Plus[7] – The employee was diagnosed with post-natal depression during her ordinary maternity leave period. She did not apply for an extending her maternity leave and was treated to have re-joined work. The Employment Appeal Tribunal (EAT) upheld “the employment tribunal’s decision that a woman dismissed having been off work sick with postnatal depression for several months after the end of her maternity leave, had not been discriminated against due to pregnancy.”
4. Equality Act, 2010
Is a comprehensive piece of legislation that protects people from discrimination in the workplace and otherwise in society. S.26(2) states that “a person A also harasses B if A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect referred to in subsection (1)(b).” S.26 (4) states that “the perception of B, other circumstances of the case and whether it is reasonable for the conduct to have that effect are to be considered to determine whether the conduct amounts to sexual harassment.”
The Equal Employment Opportunity Commission has supported claims of sexual harassment at employment tribunals and initiated investigation on organizations with such complaints.
Munchkins Restaurant Ltd. V. Karmazyn[8], is a case in which sexual harassment had taken place many years ago but was not a bar to claims in respect of sexual harassment.
Conclusion
Employment Protection Acts are of great significance since they act as a shield protecting the employees from the exploitative practices of their employers. As aforementioned, there are stark differences in India and the UK’s laws in this regard. While the Indian laws are commendable, they can be made more efficient by borrowing certain provisions from the UK. For instance, the annual revision of minimum wage to keep the income in congruence with the inflation. Also, the provision of right to compensation in case the employees job becomes redundant provided the employee has worked there for a specified period and paternity and parental leave granted in the UK are some provisions which could be very beneficial if incorporated in the Indian laws.
References:
1.The Industrial Disputes Act,1947, Indian kanoon (Oct. 5, 2020, 7PM), https://indiankanoon.org/doc/500379/.
2. Shastree, Constitutional Validity of the Minimum Wages Act, 1948, Legal Services India.com (Oct.6, 2020, 3:30PM), http://www.legalservicesindia.com/article/1770/The-Constitutional-Validity-of-The-Minimum-Wages-Act,1948.html.
3.The Minimum Wages Act, 1948, Indian kanoon (Oct. 6, 2020, 4:30 PM), https://indiankanoon.org/doc/142278/.
4. Top 20 Landmark Supreme Court & Important Judgements on Labour Law, LAWNN.COM (Oct.6 ,2020, 5:00 PM), https://www.lawnn.com/landmark-supreme-court-important-judgments-on-labour-law/.
5.The Maternity Benefit Act,1961, INDIA CODE (Oct. 6, 2020, 5:30 PM), https://www.indiacode.nic.in/handle/123456789/1681?sam_handle=123456789/1362.
6. Santhosh Kumar, Maternity Benefit (Amendment) Act, 2017- Pros and Cons, IAS EXPRESS, (Oct. 6, 2020, 6 PM), https://www.iasexpress.net/maternity-benefit-amendment-act-2017/.
7. Anshu Rani vs State of UP and 2 others, Indian kanoon (Oct. 6, 2020, 6:15 PM), https://indiankanoon.org/doc/157455271/.
8. Women Employee Entitled to Maternity Leave Irrespective of Nature of Employment – Allahabad HC, Vakilno1.com (Oct.6, 2020,6:25 PM), https://www.vakilno1.com/legal-news/women-employee-entitled-to-maternity-leave-irrespective-of-nature-of-employment.html
9. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, INDIA CODE (Oct 7,2020,2:45 PM), https://www.indiacode.nic.in/handle/123456789/2104?view_type=browse&sam_handle=123456789/136.
10. Rajdutt S. Singh, India: Overview of the Sexual Harassment at Workplace (Oct. 7, 2020, 3:15 PM), https://www.mondaq.com/india/employment-litigation-tribunals/348338/overview-of-the-sexual-harassment-of-women-at-workplace.
11. Verma, Vishaka & Ors. Vs State of Rajasthan & Ors., Indian kanoon (Oct. 7, 2020, 3:30 PM) https://indiankanoon.org/doc/1031794/.
12. Employment Rights Act,1996, legislation.gov.uk (Oct 7, 2020, 3:45 PM), https://www.legislation.gov.uk/ukpga/1996/18/contents.
13. Employment Rights Act, 1996, Net Lawman (Oct 6, 2020, 6:40 PM), https://www.netlawman.co.uk/ia/era-1996.
14. Stephen Simpson, 30 Landmark employment law judgements, PERSONNEL TODAY (Oct. 6, 2020, 6:55 PM), https://www.personneltoday.com/hr/landmark-employment-law-judgments-pt30/.
15. National Minimum Wages Act, 1998, legislation.gov.uk (Oct. 6, 2020, 7:05 PM), https://www.legislation.gov.uk/ukpga/1998/39/contents.
16. National Minimum Wage entitlement, Acas (Oct. 6, 2020, 7:15PM), https://www.acas.org.uk/national-minimum-wage-entitlement/if-an-employer-does-not-pay-minimum-wage#:~:text=HMRC%20can%20also%20take%20employers,for%20up%20to%2015%20years.
17. Annabel’s (Berkley Square) Ltd and Others v. Revenue and Customs: CA 7th May 2009, swarb.co.uk (Oct. 6, 2020, 7:30PM), https://swarb.co.uk/annabels-berkeley-square-ltd-and-others-v-revenue-and-customs-ca-7-may-2009/.
18.Maternity and Parental Leave etc. Regulations,1999, legislation.gov.uk (Oct.7, 2020, 4 PM), https://www.legislation.gov.uk/uksi/1999/3312/contents/made.
19. Maternity and Parental Leave etc. Regulations,1999, Net Lawman (Oct.7, 2020, 4:10 PM), https://www.netlawman.co.uk/ia/parental-leave-regs#:~:text=An%20employee%20is%20entitled%20to,advance%20of%20taking%20the%20leave.
20. Lyons v DWP Job Centre Plus, Croner- i (Oct.7, 2020, 4:30 PM), https://app.croneri.co.uk/law-and-guidance/case-reports/lyons-v-dwp-jobcentre-plus-2014-ukeat034813.
21. Case Update (1)- Sex Discrimination- post-natal depression, Menzies law (Oct.7, 2020, 4 :40 PM), https://www.menzieslaw.co.uk/case-update-1-sex-discrimination-post-natal-depression/.
22. What are your Paternity leave entitlements in the UK?, THE GAZETTE (Oct.7, 2020, 5 PM), https://www.thegazette.co.uk/all-notices/content/103411#:~:text=Current%20paternity%20leave%20laws%20were,birth%20or%20placement%20for%20adoption.
23. Equality Act,2010, legislation.gov.uk (Oct.7, 2020, 5:20 PM), https://www.legislation.gov.uk/ukpga/2010/15/contents.
24. Sexual Harassment in Workplace, UKDiss.com (Oct.7, 2020, 5:50 PM), https://ukdiss.com/examples/sexual-harassment-workplace.php.
25. Munchkins Restaurant Ltd. And anor V. Karmazyn, [2010] UKEAT/0359/09, Croner- i (Oct.7, 2020, 6:20PM), https://app.croneri.co.uk/law-and-guidance/case-reports/munchkins-restaurant-ltd-and-anor-v-karmazyn-2010-ukeat035909.
26. Dezan Shira & Advocates, India: The code on Wages Bill, 2019: What Employers in India Need to Know, Mondaq (19th Oct., 2020, 4 PM), https://www.mondaq.com/india/employee-rights-labour-relations/845064/the-code-on-wages-bill-2019-what-employers-in-india-need-to-know#:~:text=The%20Bill%20seeks%20to%20subsume,and%20welfare%2C%20and%20industrial%20relations.
27. Suchitra Karthikeyan, India’s New Labour Codes: What Are They and Why Are Central Unions Opposing Them? , Republic World (19th Oct., 2020, 4:20 PM) , https://www.republicworld.com/india-news/politics/indias-new-labour-codes-what-are-they-and-why-unions-oppose-them.html.
28. India’s Most Radical Rehaul of its Labour Laws Gets Parliamentary Approval, 44 central laws subsumed in to 4 Broad Codes, Swarajya (19th Oct., 2020, 5 PM), https://swarajyamag.com/news-brief/indias-most-radical-rehaul-of-its-labour-laws-gets-parliamentary-approval-44-central-laws-subsumed-into-4-broad-codes.
29. Government looks to implement all 4 labour codes in one go by December: Gangwar, The Economic Times (19th Oct., 2020, 7:54 PM), https://m.economictimes.com/news/economy/policy/govt-looks-to-implement-all-4-labour-codes-in-one-go-by-december-gangwar/amp_articleshow/78344096.cms.
[1] Municipal Corporation of Greater Bombay V. Labour Appellate Tribunal of India, AIR 1957 Bom 188 (India).
[2] V. Unichonoy V. State of Kerala, 1962 SCR (1) 946 (India).
[3] Anshu Rani vs State of UP And 2 Others, 19 Apr, 2019 (India).
[4] Vishakha and Others v. State of Rajasthan, AIR 1997 SC 3011 (India).
[5] R v. Secretary of State for Employment ex parte Seymour-Smith and Perez (No.2), [2000] IRLR 263 HL.
[6] Annabel’s (Berkley Square) Ltd and Others v. Revenue and Customs Commissioners, [2009] EWCA Civ 361.
[7] Lyons v DWP Job Centre Plus, [2014] UKEAT 034_13_1401.
[8] Munchkins Restaurant Ltd. V. Karmazyn, [2010] UKEAT/0359/09.
0 Comments