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Bishen Jeswant

Partner in the Employment Law Practice at the Bangalore office of Cyril Amarchand Mangaldas. Bishen advises on the full range of employment law matters, specialising in employee benefits, internal investigations and the law around gender and inclusivity. He can be reached at bishen.jeswant@cyrilshroff.com

Beyond the Binary: A Case for Gender-Neutral Posh Policies in India

Summary: The article explores the applicability of India’s POSH framework and how employers can build a more inclusive workplace harassment policy without diluting statutory protections for women. It seeks to offer practical guidance on extending protections to men, transgender and non-binary employees; structuring complaint-handling mechanisms, and embedding safeguards in employment contracts and service rules. It also explains the legal limits of a gender-neutral policy, helping employers distinguish between statutory powers and policy-based authority.

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Karnataka High Court rules cab-aggregator drivers are employees under POSH Act: Broader implications for gig workers in India

In a significant legal development,the Karnataka High Court (“HC”) inMs. X v. ANI Technologies Private Limited (“Respondent“) and Others[1] inter alia held that the driver-subscribers of the Respondent were its ‘employees’ for the purposes of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), and hence, the Respondent was in violation of the POSH Act for not taking any action against a driver-subscriber despite several attempts of the aggrieved customer to seek redressal (“Petitioner”). The writ petition was filed by the Petitioner, pursuant to inaction on the part of the Respondent and the internal committee (“IC”) constituted by it under the POSH Act, to consider the Petitioner’s request to inquire into her complaint of sexual harassment on the grounds that the IC lacked jurisdiction to do so as the said accused driver was not an ‘employee’ of the Respondent, but an independent contractor.

Continue Reading Karnataka High Court rules cab-aggregator drivers are employees under POSH Act: Broader implications for gig workers in India
Maternity Benefits Granted Beyond the Contractual Term in Fixed Term Contracts

In August 2023, in Dr. Kavita Yadav v. The Secretary, Ministry of Health and Family Welfare Department and Ors. (“Kavita Yadav Case”),[1] the Supreme Court of India (“Supreme Court”) overruled the High Court of Delhi’s (“Delhi HC”) decision from 2019 in the same case (“Kavita Yadav Delhi HC Decision”) to hold that fixed-term employees would be entitled to full maternity benefits under Section 5 of the Maternity Benefit Act, 1961 (“Maternity Benefit Act”), even after the expiry of their contractual term.   

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Rajasthan passes Rajasthan Platform Based Gig Workers (Registration and Welfare) Act, 2023

Introduction

The Government of Rajasthan, on July 24, 2023, passed the Rajasthan Platform Based Gig Workers (Registration and Welfare) Act, 2023 (“Act”). With this initiative, Rajasthan has become the first state in India to pass a legislation, which regulates the engagement of gig workers and aims to provide social security and other benefits to platform-based gig workers.

While at the Central level, the Code on Social Security, 2022 (“SS Code”), recognises gig and platform workers (essentially those workers who work on online aggregator platforms) as a separate class of workers and seeks to extend a variety of benefits to them, the same is yet to be brought in force.

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POSH Act

Introduction

In its recent judgment in Aureliano Fernandes Vs. State of Goa and Others(Civil Appeal No. 2482 of 2014), the Supreme Court of India (“Supreme Court”) observed that even after a decade of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) being formulated, its implementation and enforcement is still inadequate. To remedy the situation, the Supreme Court issued various directions for effective implementation of the POSH Act. For reference, the POSH Act imposes an obligation on all employers, having 10 (ten) or more workers to set up an internal committee to look into sexual harassment complaints. It also lays down the procedure for conducting an inquiry into the complaints, amongst other things.

Continue Reading Supreme Court’s landmark ruling : Directions for effective implementation of the POSH Act

Moonlighting

Introduction

Moonlighting is the colloquial term used to refer to the practice of employees working a second job, in addition to their primary job. The last few weeks saw myriad news reports on this practice in start-ups and the IT/ITES industry. Most companies have released statements opposing the practice and some have even taken action against moonlighting employees. Some companies have, however, indicated that they are open to allowing employees to moonlight within a defined framework.Continue Reading Moonlighting – Legal Considerations and Contractual Regulation

Does the relaxation on PF contribution rates really benefit employers

As part of the ‘Atmanirbhar Bharat’ (Self-Reliant India) campaign, which is the Central Government’s initiative in its war against the Covid-19 pandemic, the Ministry of Labour and Employment (“EPF Amendment”) through a notification dated May 18, 2020, has introduced an amendment to the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”).

The EPF Act is the key social security legislation in India, under which both the employer and employee are required to contribute a certain percentage of the employees’ salary to the Employees’ Provident Fund Organisation (“EPFO”) (or to a trust in case of exempted establishments). Pursuant to the EPF Amendment, read with the FAQs dated May 20, 2020 issued by the EPFO (“FAQs”)[1], the statutory rate of provident fund (“PF”) contributions under the EPF Act, for both employers and employees, has been reduced from the existing 12 percent to 10 percent, for the months of May, June and July, 2020. The EPF Amendment is applicable to all establishments except: (i) Central/State Public Sector Enterprises; (ii) establishments owned or controlled by the Government; and (iii) establishments covered under the Pradhan Mantri Garib Kalyan Yojana (for whom the Central Government is already contributing both the employer’s and employee’s share – at the rate of 12percent – for the period from March to August 2020). The EPF Amendment is expected to benefit more than 40 million members of the EPFO and more than half a million establishments.
Continue Reading Reduction in the rate of PF contributions: Some practical considerations