Delhi High Court: “Mere Physical Contact” Not Sexual Harassment

Precedential Decision by Judiciary or Regulatory Agency

Author: Manishi Pathak, Partner — Cyril Amarchand Mangaldas

On October 31, 2017, the Delhi High Court passed a landmark judgment in the case of Shanta Kumar v. Council of Scientific and Industrial Research (CSIR) wherein it was held that mere physical contact without sexual overtones would not amount to sexual harassment at the workplace. The Court noted that in order to constitute sexual harassment, physical advancements must be made in the context of an “unwelcome sexually oriented behavior.” The judgement clarifies the definition of "sexual harassment" and provides guard against frivolous complaints being filed under the POSH Act.

Companies to Bear the Cost for Setting Up of Crèche Facility Under Maternity Benefit Act

New Regulation or Official Guidance

Author: Manishi Pathak, Partner — Cyril Amarchand Mangaldas

Pursuant to the Amendment under the Maternity Benefit Act, it became mandatory for all employers with 50 or more employees to provide crèche facility (either separately or through a common facility), with effect from July 1, 2017. However, there was ambiguity with respect to who would bear the cost of providing such crèche facility. The Ministry of Labour recently confirmed that employers need to bear the complete cost of providing childcare support to its employees. Further, all state governments must take immediate action to frame crèche rules for effective implementation of the Act.

Government Releases BN Srikrishna Committee Report on Data Protection

Proposed Bill or Initiative

Author: Manishi Pathak, Partner — Cyril Amarchand Mangaldas

In November 2017, the Government of India released the BN Srikrishna Committee Report on Data Protection (Report), which recommends for the passage of a comprehensive data protection law. The new legislation would inter alia take into account: (i) flexibility due the changing technologies; (ii) application to both government and private sector entities; (iii) consent being genuine, informed, and meaningful; (iv) minimal data processing and only for the purpose for which it is sought; (v) accountability of entities controlling the data; (vi) enforcement through a statutory authority; and (vii) adequate penalties to discourage any wrongful acts. If enacted, it would overhaul the current laws and the ways personal information is being handled.

Bill to Amend the Payment of Gratuity Act

Proposed Bill or Initiative

Author: Manishi Pathak, Partner — Cyril Amarchand Mangaldas

On December 18, 2017, a bill was introduced to amend the Payment of Gratuity Act, which applies to every establishment (except factories) with 10 or more employees employed currently or during the preceding 12 months. The Payment of Gratuity Act requires every employee who has been in continuous service with an employer for 5 years receive gratuity at the rate of 15 days for each year of service, subject to a maximum of 10 lakhs, at the time of his severance. The completion of five years of continuous service shall not be mandatory if the services of an employee are terminated on account of death or disablement. Also, the Government of India has proposed to increase the threshold ceiling from rupees 10 lakhs to rupees 20 lakh.

IT Employees Form Trade Union in India’s Silicon Valley

Trend

Author: Manishi Pathak, Partner — Cyril Amarchand Mangaldas

The State of Karnataka in India registered its first trade union focusing only on employees from the Information Technology/Information Technology enabled-Services (IT / ITeS) sector called Karnataka Information Technology Union (KITU) in November 2017. This is a significant step towards unionization in the IT/ITeS sector in India, which employs around four million employees. Bengaluru, the capital of the State of Karnataka, employs around 1.5 million out of the 4 million IT/ITeS employees. KITU’s formation comes at the backdrop of a series of layoffs and retrenchments in the IT/ITeS sector since the beginning from 2016.