Home Anti-discrimination Employment law and workplace discrimination: an understanding

Employment law and workplace discrimination: an understanding

October 27, 2024

132

This article has been written by Mihir Ramdasi pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

As per American Psychological Association, “Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age, or sexual orientation.” Such discrimination can occur at any place. As far as the workplace is concerned, it may occur at two stages: pre-recruitment and post-recruitment. It may be rejecting potential employees in favour of some other person, unfair payment, fewer benefits, and/or leave, or even termination. In this article, employment laws as well as workplace discrimination have been discussed.

Employment and its benefits

In today’s world, every person strives and works to attain something. Every person is employed. Earning by some means is an essential factor in each person’s life. Even a person who receives means through inheritance needs to work to sustain himself. Being in employment gives a person satisfaction or a sense of worth, i.e., he/she has achieved something. Employment means ‘being in a state of having paid work’. A person by working earns for himself as well as people dependent on him. Employment not only offers opportunities for acquiring means but also helps in the overall development of a person. It helps a person to develop his skills, to gain knowledge. As a person who is in employment gets experience, he comes across people from different walks of life. Thus, employment helps a person increase his network circle. This network circle may contain people with experience, which is another way a person may develop himself. A person who is employed always remains in a good state of well-being. Every person works to gain monetary gain or another thing. Hence, when he can gain that, he is mentally stable, increases self-esteem, and eventually reduces health-related issues. Also, it helps with improving the public services because a higher number of employed people will lead to the generation of tax revenue.

Employment laws

In place of employment, there will be two parties involved: employees and employers. The one who hires another is the employer, while the one who is hired is the employee or worker. There may be many instances where a person working may face problems while being employed. For example, a person may agree to work at a rate of wages that is very less than another person working at the same level or which he deserves to get. There may be favouritism where one may get wages at a rate more than the others or more than he deserves. There may be instances where a person’s services may be terminated without giving a proper notice or reason for leaving the work. This work is his only means of livelihood. There are many other instances which warrant the requirement of employment laws. These laws are a body of rules and regulations protecting the interests of both the employees and employers. It also consists of precedents.

Reasons for requirement of employment laws

To ensure that the employees get appropriate and fair wages.
To prevent unreasonable termination from work, i.e., ensuring job security.
To see that the work conditions are healthy and safe as per required standards.
These employment laws also govern the overall relationship in the system, i.e., employee and employer relationships.
Fixation of hours and periods of rest.
Ensuring availability of necessities.
To provide for a redressal mechanism in case of conflict.

Employment laws in British era

The laws during the British era were basically for the employers or industrialists. These laws protect these people and are more pro-employer than focussing on the needs of the employees. The earliest law was the Factories Act 1883. It had regulations or provisions relating to timing, wages, abolition of child labour and some related to conditions of health and security. Then there was the Trade Union Act of 1923, which had provisions that moved from pro-employer and looked after worker’s concerns. Some other legislation: Payment of Wages Act 1936, Trade Disputes (Amendment) Act 1938.

Employment laws in independent India

After independence, with the growing population, there was demand for welfare legislation. Even the views of freedom fighters had a greater impact at that time. The government had to make laws keeping these things in mind. Also, there was a need to adhere to various human rights regulations, treaties entered into internationally and conventions such as the International Labour Conference so as to ensure proper functioning of the laws and keep the standard of the laws on the same footing as the international laws. These laws had to adhere to the provisions of the constitution. A person’s fundamental rights shall not be violated. For example, the right to live in a healthy environment is a fundamental right that is implicit in Article 21, the right to life and personal liberty. To lead a proper life, it is necessary to live in a healthy environment, which means a clean workplace containing appropriate safeguards to protect the employees.

Keeping all this in mind, the Indian government had a big task to frame laws with respect to employment (labour laws). As far as labour law is concerned, it comes under the union list as well as concurrent list. When it comes under both means in case of union, matters under this can be covered only by union, while concurrent matters can be covered by both state as well as union. There are many laws which have been passed by the union alone, while there are some laws enforced by both the state and union and some enforced by the state that are applicable to only that state.

Some union-passed laws are:

As far as states are concerned, in Maharashtra there are somewhat more than 50 laws passed on the subject matter. These laws are passed keeping in mind the conditions prevailing with respect to the industries.

Workplace discrimination

Discrimination is unjust treatment meted out against a person. It may be on the grounds of sex, gender, caste, disability, etc. Discrimination is basically part of the ideology or thinking of a person. When a person is discriminated against, a person is basically deprived of certain rights or privileges he is entitled to.

Workplace means a place where work is done, like the office, factory, etc. In a workplace, there may be instances where there can be pay disparity, meaning that two employees performing the same or comparable work may be paid unequally. In such cases no reasons may be given, or the reasons given are not logical or the reasons given are false. This may be due to family relationships or favouritism. It may also be on the basis of sex. According to a report in July 2022 and 2023, an average salaried man earned RS 20,666 while a woman made RS 15,722. The difference between the two amounts is quite large.

The discrimination is not only in the context of gender but may also be with respect to ethnicity. For a long time, ethnic minorities have been discriminated against. A report conducted between 1990 and 2005 showed that ethnic minorities have fewer chances of securing interviews as compared to the majority.

The discrimination may be in situations where people are more attractive as compared to people who are more attractive or who are physically unfit. Hence, this warrants making certain provisions to ensure that there is no workplace discrimination.

Constitutional provisions

There are certain articles in the constitution that prevent discrimination of any kind. Article 15 states that “The state is not allowed to discriminate on the basis of religion, race, caste, sex, or place of birth. However, there are certain exceptions in this case. Article 15 gives the state the authority to make provision for advancement of socially and educationally backward classes as well as economically weaker sections of citizens. Article 14 says everyone is equal before law. As per directive principles of state policy, the state can make provisions relating to equal pay for equal work. A person should pay according to the work done by him and if two people have done the same amount of work, there cannot be any kind of disparity with respect to the pay.

Code of Wages, 2019

It is an act of parliament. It was enacted to deal with wages, bonuses, and related matters. It subsumes all four acts of wages.

The Minimum Wages Act

The Minimum Wages Act, enacted in 1948, stands as a pivotal piece of legislation designed to protect the rights of workers and ensure their fair compensation. It serves as an act of parliament aimed specifically at setting the minimum wage standards for both skilled and unskilled labour.

In the past, employers often engaged in unfair practices, paying wages below what employees deserved or had been promised. Recognising this injustice, the Minimum Wages Act emerged not only to guarantee that workers receive a minimum wage sufficient for a basic standard of living but also to consider the financial capacity of the employing industry.

The Act strives to strike a delicate balance between these two factors. It acknowledges that while employees should be justly compensated for their work, the financial viability of the industry must also be taken into account. This approach ensures that wages are both fair to workers and sustainable for businesses.

Furthermore, the Minimum Wages Act empowers both the central government and individual states to establish minimum wage rates. The central government sets a baseline minimum wage, while states have the authority to adjust these rates based on regional circumstances and prevailing economic conditions. This provision recognises the diverse regional dynamics across India and allows for wage variations that align with local factors.

By establishing minimum wage standards and fostering collaboration between unions and states, the Minimum Wages Act serves as a crucial instrument in promoting social justice and economic equity. It safeguards workers from exploitation, ensures that they receive fair compensation for their labour and contributes to a more harmonious and balanced labour market.

As per the Act, while fixing the wages for a normal working day, the following needs to be taken into consideration:
- The number of hours that are to be fixed should have one or more intervals included.
- One day off should be given to the employee for rest.
- Payment for the day decided to be given for rest should be paid at a rate not less than the overtime rate.
If an employee is involved in work that categorises his service in two or more scheduled employments, the employee’s wage will include the respective wage rate of all work for the number of hours dedicated to each task.
It is mandatory for the employer to maintain records of all employee’s work, wages, and receipts.
Appropriate governments will define and assign the task of inspection and appoint inspectors for the same.

These are some of the provisions of the act. The act is applicable throughout the country.

The Payment of Wages Act

The Payment of Wages Act serves as a crucial piece of legislation that regulates the manner in which wages are paid to employees. It establishes a comprehensive framework aimed at ensuring fairness, transparency, and timely payment of wages.

The Act’s applicability extends to employees who earn less than INR 24,000 per month, as per the 2017 report. This threshold plays a significant role in identifying the workforce segments covered under the Act’s provisions.

Beyond the Act’s core objective of regulating wage payments, it also emphasises the importance of establishing certain rules of conduct for employers and employees. These rules serve to create a harmonious and respectful work environment. Employers have the responsibility to treat their employees fairly, provide safe and healthy working conditions, and adhere to the terms and conditions outlined in employment contracts. Employees, on the other hand, are expected to perform their duties diligently, maintain discipline, and comply with company policies and procedures.

Furthermore, the Act recognises the significance of forming a body such as a union to represent the needs and interests of employees. A union acts as a collective voice for employees, enabling them to negotiate with employers on issues related to wages, benefits, and working conditions. Unions play a crucial role in promoting fairness and ensuring that employees’ rights are protected.

In summary, the Payment of Wages Act serves as a vital tool in regulating wage payments, establishing ethical conduct in the workplace, and fostering constructive relationships between employers and employees. The Act’s provisions help create a more equitable work environment where employees’ rights are safeguarded and employers fulfil their responsibilities effectively.

The Equal Remuneration Act of 1976

The Equal Remuneration Act, 1976, is a crucial piece of legislation in India that addresses the issue of gender pay disparity. It mandates equal pay for equal work for men and women, ensuring that individuals performing similar tasks receive the same remuneration regardless of their gender. This Act prohibits any form of discrimination in hiring or employment conditions based on sex, promoting fairness and equality in the workplace. It also aims to eliminate discriminatory practices in recruitment and service conditions, except where specific exemptions are provided by law.

The Central Advisory Committee, established under the Equal Remuneration Act, serves as a consultative body to the Central Ministry of Labour. Comprising representatives from various sectors, including employers, workers, and government, the Committee provides valuable advice and recommendations on matters related to pay equity. The Committee plays a crucial role in reviewing the implementation of the Act, identifying challenges, and suggesting measures to strengthen its enforcement.

The Equal Remuneration Act contributes significantly to creating a more gender-inclusive work environment. By promoting equal pay for equal work, the Act helps break down gender stereotypes and biases that have historically perpetuated wage disparities. It empowers women workers, allowing them to fully participate in the workforce and contribute to economic growth.

Furthermore, the Act sends a strong message that pay discrimination is unacceptable and that employers must prioritise fairness and equality in their compensation practices. By fostering a culture of respect and dignity for all workers, the Equal Remuneration Act helps build a society where women have equal opportunities and are valued for their contributions.

The Rights of Persons with Disabilities Act of 2016

The Rights of Persons with Disabilities Act, 2016 aims to protect the rights of disabled persons in India. Key provisions include:

Non-discrimination: Disabled persons have the right to equality and cannot be discriminated against on the basis of their disability. This includes protection from discrimination in employment, education, and access to public services.
Accessibility: The Act mandates that public buildings, transportation, and information and communication technologies be made accessible to disabled persons.
Education: Disabled children have the right to free and inclusive education in their neighbourhood schools or special schools. The Act also provides for reservations of seats for disabled persons in higher education institutions.
Employment: The Act prohibits discrimination against disabled persons in employment and mandates that government establishments provide reasonable accommodations to disabled employees. It also provides for the reservation of jobs for disabled persons in government establishments.
Social security: The government is required to frame schemes for the welfare of disabled persons, including providing them with financial assistance, healthcare, and rehabilitation services.
Grievance redressal: The Act establishes a mechanism for the redressal of grievances of disabled persons, including the appointment of a Chief Commissioner and State Commissioners for Persons with Disabilities.
Legal aid: Disabled persons have the right to free legal aid.
Punishment for offences: The Act provides for punishment for offences such as discrimination against disabled persons, denial of their rights, and violence against them.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013, or POSH Act, is landmark legislation in India that aims to protect women from sexual harassment in the workplace. It was enacted in response to the Vishaka Guidelines, which were issued by the Supreme Court in 1997 in the absence of domestic law on the subject. The POSH Act provides a comprehensive framework for addressing sexual harassment, including defining what constitutes sexual harassment, establishing reporting and investigation procedures, and outlining the rights and protections available to victims. Key features of the Act include the establishment of Internal Complaints Committees (ICCs) in workplaces to investigate complaints, the provision of safeguards for victims such as confidentiality and protection from retaliation, and the imposition of penalties on employers who fail to comply with the Act. Despite its significance, the implementation of the POSH Act has faced challenges, including a lack of awareness and understanding of the Act, inadequate enforcement mechanisms, and the underreporting of cases due to fear of retaliation. To address these issues, there have been calls for greater government oversight, increased awareness and training programs, and the establishment of more effective complaint redressal mechanisms.

Conclusion

These are needed for smooth functioning of the organisation and, at the same time, to provide the employee with what he deserves for the work he does. There should be no discrimination on any basis. Such acts may cause that person to lose morale and may cause mental health issues. Also, this can be a reason for low energy. Slowly and steadily, this leads to low output rates. This is indirectly harmful for the employer due to the loss he may suffer in the future.

Employment law and workplace discrimination: an understanding

Introduction

Employment and its benefits

Employment laws