Mediation for Workplace Discrimination Disputes

There are various legislations in India that contemplate reference of disputes to mediation for settlement. These are – The Civil Procedure Court, The Companies Act, The Consumer Disputes Act, The Commercial Courts Act. Further, The Mediation Bill, 2021, currently placed before the Parliament will enhance the use of mediation in India. With regard to workplace disputes, the
following statutes mention conciliatory processes, without specifically referring to mediation.

 

The Industrial Disputes Act, 1947 mentions conciliation, and not particularly mediation; but, cases are often referred to court-annexed mediation centers. However, under this Act, the definition of workmen specifically excludes any person, who is employed in managerial or administrative or supervisory capacity.

 

The Prevention of Sexual Harassment on Women at Workplace Act, 2013, contemplates prevention, prohibition and redressal of sexual harassment at the workplace. This legislation provides for a complainant to escalate the matter to the
Internal Complaint Committee (ICC), but also provides for conciliation by the ICC. Considering that the ICC may not have complete neutrality in conducting Conciliation proceedings, it can suggest that parties try mediation before attempting conciliation. The handbook on tackling sexual harassment of women at workplace published by the Ministry of Women and Child Development, Government of India, contemplates an informal and a formal process for resolving sexual harassment disputes. The informal mechanism includes appointing a neutral person to act as a conciliator between the parties to resolve the complaint. Mediation by a neutral person is also often recommended before a formal complaint is filed before the ICC. There is a need for creating awareness about mediation as an option to amicable settlement, before the complainant considers filing a written complaint before the ICC. Interestingly, few companies have a gender-neutral policy as far as sexual harassment is concerned.

 

In our experience, workplace disputes often include: Inter-personal conflicts among employees

 Employment terms and conditions
 Disputes pertaining to sexual harassment.
 Disputes pertaining to salaries and promotions
 Disputes pertaining to job roles.
 Wrongful termination.

 

The common trend is for employees to sign employment contracts, which have various terms and conditions pertaining to their scope of work, salaries and redressal of disputes. For any violation of terms of employment, the employer / employee has the right to go to the jurisdictional courts as a general practice for violation of terms of the employment. Almost all disputes in the workplace are dealt with by the HR department – often the first point of the contact for a disgruntled employee having any grievance as mentioned above.

 

There is a need for robust awareness and training programmes to equip the HR department of all corporates to deescalate conflict, and identify suitable cases for mediation. Further, it would benefit easy referral to mediation, if there is an option of mediation by a third party neutral as a clause in the employment contract. The mere presence of a Mediation clause in contracts
would also ensure a productive and peaceful working environment. The day is not far when Mediation will be the first option adopted for resolving all types of workplace disputes in India .

Rukmani Menon

Rukmani Menon

Ms. Menon has been a Mediator since 2015. She is also an IMI certified Mediator. She trained with JAMS (USA) and Bangalore Mediation Centre. She is also trained by  Singapore International Mediation Centre to mediate in Cross border disputes and  Appointed as Member of Specialist Mediator Panel (India) by Singapore International  Mediation Centre.    She is a Mediator at the Bangalore Mediation Centre and has mediated over 450 cases in a wide range of civil and commercial matters including money recovery, real estate,  contract, sports and matrimonial disputes.  Ms. Menon was recently appointed to the Global Panel of Mediators for workplace  mediations by the UNDP.