Recruiting Female Staff for Night Shifts: What Legal Conditions Should I Know?

Dear all,

I recently joined a software company. In this organization, females are not working the night shift. However, I want to recruit some female staff for the night shift. Can anyone suggest if there are any acts or conditions required to appoint female staff for the night shift?

Thanks & Regards,
Samarpita Pramanik

In the present scenario, everything is best suited to employ women in the night shift, providing the fullest safety measures and all other benefits. Here, kindly see the Gujarat High Court Order where women can be employed in the night shift.

Gujarat High Court Ruling

Ahmedabad: In an important ruling, the Gujarat High Court on Friday held that women can be employed in night shifts, and the provision in the Factories Act, 1948, which bars it, is unconstitutional.

Section 66(1)(b) of the Factories Act prohibits industrial units from employing women from 7 pm to 6 am. The division bench of Chief Justice Bhaskar Bhattacharya and Justice J. B. Pardiwala said the section is in breach of fundamental rights guaranteed under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution, so it was invalid.

The constitutional validity of Sec 66(1)(b) had been challenged by Balaji Wafers Company on the ground that the section discriminated on the basis of gender. Mahila Utkarsh Trust, an NGO based in Amreli district's Damnagar town, had also challenged the provision as some of the women in the area were denied employment by ginning factories citing the Factory Act. The court had clubbed the two petitions.

The Madras High Court has earlier ruled Section 66(1)(b) as constitutionally invalid, while the Kerala High Court ruled that it was a valid provision. The court today quoted both these judgments as well as the Supreme Court ruling that has said that women can be employed even at a place in night shifts where alcoholic beverages are served.

The court observed that women now work even at the grassroots level, as in police or other government duties. "The section does not allow even a female entrepreneur who owns the factory to supervise her own staff during the night shift because the Act does not provide for it. In that case, she will be forced to employ a male supervisor for the night shift or she will have to shut down the night shifts in the factory," the court said today.

It is the state's duty to ensure the safety of female workers in a factory. Even modalities with the help of factory owners can be worked out, but safety cannot be the sole grounds for not allowing women to work during the night. "Factory owners should ensure the safety and welfare of the women with adequate arrangements. Transportation facility for such workers should be provided to them," the court said.

Mahila Utkarsh Trust's petition said as most male members had migrated to other places for work, women needed jobs. They had to do the household chores during the day, so they looked for jobs in the night shift. Balaji Wafers contended that the "employability" of women was higher in the food processing industry, as it involves cooking. "We have 380 women out of the total strength of 550. Our demand to extend the working hours for women till 10 pm was also rejected by the state government. Therefore, we challenged the same in the High Court," said Bhavesh Choksi, its lawyer.

PTI

(This can be seen by yourself on india.com)

I suppose you are from Vadodara. The answer by Gopinath is beyond any doubt in light of the recent judgment of the Gujarat High Court. You can apply the Gujarat High Court judgment since you are in its jurisdiction.

Further, just to add, the Factories (Amendment) Bill, 2014, which was introduced in the Lok Sabha on August 7, 2014, seeks to remove the restrictions on the working hours of women between 7:00 pm and 6:00 am. This is for your information.

Understanding IT Policies for Night Shifts

The Factories Act amendment has nothing to do with IT companies, but there are separate IT policies notified by state governments that permit the engagement of women during the night. Therefore, you should review the IT Policy of your state. If the state government has granted permission to engage women during the night, you may proceed with recruitment, ensuring strict adherence to the conditions of such engagement.

Regards,
Madhu.T.K

As the IT/ITES industry does not fall under the Factories Act, you may arrange night shifts with female employees. However, you should ensure to arrange transport facilities and security. Additionally, you should establish a disciplinary committee to address compliance mechanisms.

Mr. Liyonzon is absolutely right—IT/ITES organizations do not fall under the Factories Act, so there is no legal complication for employing female staff members at night. However, your primary concern should be the safety and security of those employees. There have been incidents before where the safety of female staff was compromised. The transportation department of your organization must have a proper fleet management system in place, such as GPS tracking of the cabs engaged in the pickup and drop-off of female employees. If possible, you may also consider deputing security guards in those cabs. Under any circumstances, the female employee should not be the last person to be dropped off.

My suggestion to you is to think twice before taking such actions and to implement proper safety procedures and logistics support to ensure safety and security.

Legality of Engaging Women During Night Shifts

The legality or illegality of engaging women during the night is not because IT companies do not come under the Factories Act. It is true that IT companies do not fall under the Factories Act, but these companies fall under the respective State's Shops and Commercial Establishments Act. This Act, like the Factories Act, ensures proper conditions of service, safety, and health of employees in shops and other commercial establishments. In this Act, the restriction on engaging women during the night is also present.

At the same time, under the Shops Act, there are certain exemptions given to industries in general regarding the coverage of certain provisions of the Act. For example, hospitals are exempted from the restriction of engaging women during the night, and hotels, eating places, and hospitals are exempted from the provision relating to the mandatory closing of the establishment for one day every week.

Exemptions for IT Companies

In the case of IT companies, different state governments have provided exemptions either through amendments in the Shops and Commercial Establishments Act, which regulates the service conditions of employees of IT companies, or through separate notifications or IT Policy. Therefore, you need to refer to the IT Policy along with the Shops Act for a better understanding of whether you can engage women during the night.

Regards,
Madhu.T.K

You can hire in the IT/ITES industry as it does not fall under the Factories Act. However, you should provide all the necessary facilities regarding their security.