Yashasvi Jain & Sameer Gupta
In the absence of any immediate incentive, employers have not considered investing in pandemic preparation procedures in India. However, the Covid-19 crisis has made the employment industry consciously realize the long-term benefits of investing in pandemic preparation procedure. Specifically, technology in terms of infrastructure has become a sine-qua-nonfeature of pandemic preparation procedure and the employers who have made an investment in technology have not only continued to manage their operations but have also been able to perform exceedingly well.
However, the advancement of technology comes with its own vice. The onset of a virtual workplace has given the employers an unfettered discretion to formulate policies on storing data of employees. The exercise of this discretion in the absence of any guideline can be fatal to the employees, as the Covid-19 crisis may be taken as an avenue wherein the employers breach the privacy of their employees. Additionally, the work from home culture has increased the vulnerability of the private data of the employees to cyber-attacks. It is very pertinent to note that the Government of India has not released any notification or directive for the employers to protect the privacy concerns of the employees. However, the Puttaswamy judgement clearly recognises that an individual is to have control over the dissemination of material that is personal to him and unauthorised use of such data shall lead to infringement of his fundamental right to privacy, thus making consent a sine-qua-non for any state action. While collecting the data, the employees must ensure that any sensitive data collected during the pandemic is secured and kept separately from the general file of the employees. The confidentiality of this data should be protected by all means. Specially, when the work from home culture is in force the employees must ensure that they operate under a protected firewall and virtual private network. Post Covid-19 crisis, the employer must also establish an erasure mechanism for the data of the employees. The right to erasure is an implementing mechanism for the principle right i.e. right to be forgotten. The erasure mechanism will ensure that the employees can exercise their right to be forgotten which has already been recognized by the Delhi High Court. Therefore, as a measure of pandemic preparation procedure, the employees must ensure that the procedure concerning data collection and dissemination is in accordance with the law.
The work from home culture has further directed the employment industry to another dichotomy wherein large group of individuals have found themselves extremely comfortable with electronic equipment, whereas differently-abled individuals may not be able to accommodate themselves with the technological equipment. This is specifically due to the unavailability of proper specialized equipment for the differently-abled employees. It is needless to say that the employers should not leave such differently-abled employees in lurch.
The World Health Organization (WHO) in its report on disability considerations notes that where health authorities around the world are taking action to contain the Covid-19 outbreak. The differently-abled population may be impacted more significantly by Covid-19. Therefore, it is imperative that certain specific and sensitive actions should be taken for them. As this situation was not foreseen, the legislative body in India is yet to release a guideline for the employers regarding the treatment of the differently-abled employees. It is necessary for the employers to ensure that their discretion in this situation is aligned with a conscience of taking the right policy decisions. Firstly, employers may incorporate simple policy measures within their working environment, such as enabling the employees to access medical healthcare specifically when the differently-abled individuals may face operational barriers in accessing them. Secondly, the employers may also collaborate with disability service providers and national & state agencies to ensure an efficacious functioning of the differently-abled employees. Thirdly, the employers should ensure that the differently-abled employees have sufficient infrastructure i.e. specialized audio, visual and other aids to accommodate themselves with the work from home culture.
The above considerations elaborate on the potential threats to the employees wherein there exists no legislative guidance. The plethora of Labour Law legislations and Right of Persons with Disabilities Act, 2016 do not mandate the employers to take the above steps as a part of the pandemic preparation procedure and consequentially the absence of any legislative guidance/directive allows the employers to exercise their own discretion in these unforeseen circumstances. Where the statute carves a space for discretion, the court can interfere with the exercise of such discretion if it is made arbitrarily or without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved because it is not only the undertakings but also the society which has a stake in the proper and efficient working of undertakings.
Both discipline and devotion are necessary for efficiency. To ensure, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. Axiomatically, in light of the extenuating circumstances surrounding the Covid-19 crisis, the employers may not have a specific letter of law to follow, but they must follow the spirit of law.
Yashasvi Jain is a clerk at the Supreme Court of India & Sameer Gupta is a Fifth Year student enrolled in B.A.LL.B. (Hons.) at National University of Study and Research in Law, Ranchi
Picture Credits: The Financial Express
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