Ten basic rights of an employee in India
1. Leave is the right of all employees
Generally, an employee is given the following leaves during the course of his or her employment:
- Casual Leave: This is provided to an employee to take care of urgent or unseen matters like a family emergency; for example, employees can apply for casual leave to attend a parent-teacher meeting called for by their child’s school.
- Sick Leave: Sick leave is provided when an employee gets sick.
- Privilege or Earned Leave: Privilege or earned leaves are long leaves that are planned for in advance.
- Other Leaves – Apart from the above mentioned leaves, there are some other paid, unpaid or half-paid leaves which are provided at the discretion of the company. Study leave and bereavement leave are two such examples.
Medical Certificate for one-day sick leave
Usually, when a sick leave exceeds beyond two or three days, depending upon the company policy, employees are requested to submit a medical certificate to sanction the leave. However, in the case of one-day sick leave, an employer should not ask for a medical certificate.
In one of its judgements, the Supreme Court mentioned that an employee will not necessarily seek medical attention if he or she is ill for just a day.
An employee can take encashment leave while quitting service, superannuation, discharge, dismissal or death. Leave encashment should be as per average daily wages of an employee.
|Type of Leave||Privileged / Earned||Casual||Sick||Maternity|
|Quantum per year||1 day leave for every 20 days worked in the previous year (Eg. 300 days worked = 15 days leave)||Nil||Nil||As per ESI Act OR Maternity Benefits Act|
|Entitlement||On working 240 days in the first previous year||NA||NA||NA|
|Utilization||To apply for leave 15 days prior. Leave not to be availed more than 3 times a year||NA||NA||NA|
|Carry Forward||Not more than 30 days||NA||NA||NA|
Leave during notice period
An employee can take leave during notice period, provided it is for a genuine reason like maternity, health issues, etc.
The Delhi High Court, in one of its judgement, said that an employee can take leave during the notice period if nothing is mentioned in the appointment letter which bars the employee from taking leave during the notice period, if he has leave to his credit and is entitled to the same.
2. Protection from sexual harassment at the work place
It is the responsibility of the employer to ensure that his/her employees, especially female employees, are protected while at work. All incidents of sexual harassment – regardless of how big or small they are or who is involved – require employers or managers to respond quickly and appropriately. Just because someone does not object to inappropriate behaviour in the workplace, it does not mean that they are consenting to the behaviour.
An aggrieved woman can seek remedy under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Sexual harassment is punishable under the Indian Penal Code
The law mandates employers to formulate a policy which prohibits sexual harassment. The policy should be a part of the company’s service regulations to provide a healthy working environment. The company’s policy must clearly define what exactly constitutes a sexual harassment and enumerate penalties, online grievance redressal procedures as well as additional resources like a list of individuals to be contacted for consultation, etc. The policy should also ensure impartiality in investigation.
The law outlines the structure of an internal complaint committee for organisations with ten or more employees and instructs the formation of a district level local complaint committees for other organisations.
All offices, hospitals, institutions and other establishments should set up an internal complaint committee. The employer should nominate the committee members and constitute the committee. The committee should also include a senior woman as a member, two other employees as members and a non-governmental member.
At the district level, the District Officer (normally the Collector), an officer as authorized under the act, should constitute a Local Complaints Committee.
A Nodal Officer will also be nominated by the District Officer for each block, municipality or tribal area to receive complaints and to forward them to the respective local complaint committee within seven days.
3. Maternity benefit
The Maternity Benefits Act, 1961 (MBA) was enacted with respect to employment of pregnant women in establishments.
Earlier, the law mandated that a female worker was entitled to a maximum of 12 weeks (84 days) of maternity leave. Of these 12 weeks, six weeks leave are for post-natal leave.
Employees are also entitled to one additional month of paid leave in case of complications arising due to pregnancy, delivery, premature birth, miscarriage, medical termination or a tubectomy operation (two weeks in this case).
With new amendments made to the Maternity Benefits Act, 1961, the paid maternity leave has been extended from 12 weeks to 26 weeks for women working in the private sector.
No employer can employ a woman in the six weeks following the date of her delivery or miscarriage. It is also illegal to discharge or dismiss her on account of such an absence.
Employees cannot be discharged or dismissed while on maternity leave, nor can there be any disadvantageous change to their conditions of employment. This can be overruled in cases of gross misconduct or if employees take up work for another establishment during their leave.
It is important to note, however, that pregnant employees who are discharged or dismissed may still claim maternity benefit from the employer.
Gratuity is a statutory right of employees and cannot be denied to them on the grounds that they are being given provident fund and pension benefits. Gratuity is a statutory benefit paid to the employees who have rendered continuous service for at least five years.
It is a lump-sum amount paid to an employee based on the duration of his total service. The benefit gratuity is payable to an employee on cessation of employment either by resignation, death, retirement or termination, by taking the last drawn salary as the basis for the calculation.
Gratuity is an important form of social security and is looked at as a gesture of gratitude by the employer to the employees, paid for in monetary terms, for the services rendered by them to the organization. It is a defined benefit plan and is one of the many retirement benefits offered by the employer to the employee upon leaving his job. Gratuity payment liability of the employer tends to increase with an increase in salary and tenure of employment.
Employee’s Provident Fund (EPF) is a retirement benefit scheme that’s available to all salaried employees. It is managed by the Employee Provident Fund Organisation of India and any company with over 20 employees is required by law to register with the EPFO.
As per law, both, the employer and the employee have to contribute 12% of their basic salary to the provident fund. If any employer is deducting the whole PF contribution from an employee’s salary then it is against the Act, and he can apply against the same in the PF Appellate Tribunal.
Is it necessary to contribute to PF?
If you earn more than Rs 15,000/- a month, you can always opt out of contributing towards EPF. However, you need to opt out of it at the start of your career. If you have been a part of EPF even once, then you are not allowed to stop contributing.
6. Working Hours
The Shop and Establishments Act of every state has fixed the maximum no. of working hours 9 hours a day and 48 hours a week. The Shops and Establishment act does not see any difference between managerial and nonmanagerial workers when it comes to regulations relating to working hours. The working hours may be increased up to 54 hours a week upon prior notice to the Inspector, but this increase would be subject to a condition that overtime hours should not be more than 150 in one year.
7. Right to get Insurance
Every employee will have the right to be insured by the employer under the Employee State Insurance Act 1948, in case of any kind of injury or miscarriage occurring during the course of employment.
8. Right to go on Strikes
The employees are provided with the right to go on a strike without giving a notice, however if the said employee is a public utility employee, then he would be bound by the prohibitions laid down in the Industrial Disputes Act 1947, Section 22(1) lays down certain conditions on Strikes by public utility employees, the conditions includes giving out prior notice to the employer six weeks before going on such strike.
9. Right to Equal Pay for Equal Work
Equal pay for Equal work is a constitutional right and any employer is liable to pay equally to any men, women or temporary staff performing same tasks and undertaking same responsibilities. There can be no discrimination while paying any basis to employees.
10. Written employment agreement
An employer must provide a written Employment Agreement before you start work.
An Employment Agreement is a legal document, which contains the ‘terms and conditions’ of your employment. It lists the rights and obligations of both, the employer and the employee, and is designed to give both parties security and protection.
By law, your employer must give you a written Employment Agreement before you start work.
The Importance of an Employment Agreement
An Employment Agreement gives both parties a sense of security that both are fully aware of their obligations and have agreed to comply with the stated terms and conditions.
A professionally well-drafted Employment Agreement endeavours to prevent disputes between employers and employees, and in the event of any dispute, it serves to resolve the dispute because all terms of employment are clearly mentioned in it.
You have the right to get advice on an Employment Agreement before you agree to it or sign it.
It is a good idea to spend some time carefully thinking about the conditions of the Agreement. If in doubt, seek professional help.
Understanding your rights as an employee is the first step.