How Can Employees Legally Address Managerial Misconduct in Indian Software Companies?

Dear All, Greetings!! This is a common question we HR professionals receive in most group and social site discussions. Sometimes, even a few employees consult us regarding this prevalent issue, which is very problematic nowadays in many software companies.

The Issue of Managerial Misconduct

We have noticed an increase in cases where an employee is unable to lodge a complaint regarding his or her manager's behavior during working hours. Employees often complain that their manager's behavior is very rude, leading to mental harassment for them every day, even though it does not involve any physical misbehavior.

Legal Options for Employees

According to the law or common corporate practice, what options do employees have in such situations? Are they authorized to lodge a complaint at the nearby police station, or are there different provisions for this?

Challenges with Internal Committees

In many companies, internal committees for handling such issues are non-functional. Even after numerous meetings between HR, the employee, and the employee's manager, employees are not finding a resolution to this serious issue.

Considering all the points mentioned above, I would like to explore and discuss more about the legal options available to employees in such cases.

Regards, Dipesh Prabhakar Lead - Talent Acquisition

Hi Dipesh, it is true that there may be no specific laws as of now against mental harassment in the workplace, unless the act of mental harassment can be linked to any other situation which has set laws in place, or ultimately to Article 21 of the Constitution, which is about the right to life and therefore the right to employment being linked to sustaining the right to life. Mental harassment can lead to a hostile work environment for the employee under focus here, hampering his or her ability to work at the organization and thus threatening the means to support the person's livelihood and life.

This way, you can link actions leading to mental harassment to various acts.

I appreciate the way you presented your thoughts. In most cases, employees don't complain to management regarding this because of:

(1) Fear of losing their job

(2) Defamation

(3) Belief that managers may have a better influence on decision-makers' views, and employees fear they will be unheard even after a formal complaint

(4) Lack of knowledge about the process or legal clauses related to it. On the other side, the employer may have various legal options and information to deal with such cases.

I have understood, from talking to many people lately, that they feel assaulted, demotivated, and mentally harassed due to the behavior of managers, leads, or management.

Considering all these points, I have initiated this discussion here to gain better clarity, thought processes, and perhaps some solutions and legal advice.

The Impact of Organizational Culture on Growth

The growth of an organization depends significantly on the culture that its leaders cultivate. An organization is often seen as an extension of its leader. Therefore, deciding the type of culture to foster is a critical decision for top leadership.

Employee Motivation and Communication

Employee motivation is heavily influenced by a culture of fairness and justice. Another crucial aspect is upward communication within the organization. Top leadership must establish mechanisms to listen to junior staff, preferably through formal communication channels.

The Role of HR in Managing Workplace Behavior

HR plays a vital role in identifying cases of abrasive behavior by managers. To achieve this, HR must be well-connected with every department. Attending briefings at the start of working hours or shifts is essential for HR, and maintaining records of these briefings is crucial. Additionally, HR needs to maintain a strong connection with employees.

The Importance of Follow-Up Actions

Ultimately, what truly matters is the follow-up action by top management. What will happen if no action is taken? What will HR do if burdened with clerical work, leaving no time to stay connected?

The Responsibility of Top Management

This places the responsibility on the shoulders of top management. Unfortunately, not many Managing Directors understand that employee motivation is crucial for organizational growth. In numerous companies, MDs exhibit poor behavior towards employees, fostering a culture of disaffiliation and disconnect. Employees endure this mental disconnect until it becomes unbearable, leading them to eventually leave the company.

Thanks,

Dinesh Divekar

Dear Dinesh Divekar,

Thanks for your valuable comments! I second it. Based on the inputs received so far, I have understood that the issue of mental harassment is more related to the company's culture and the level of trust it creates with its employees. If top management and HR leaders are well-connected with employees, the company's resources will be more confident to highlight such issues to them. Unfortunately, top management and leaders are unable to understand it well, and managers and leads are taking advantage of it.

Based on the valuable inputs received so far, I have noted one point that may be helpful for me and others as well: it is the company's HR and top management's responsibility to create a healthy environment, to gain the trust of employees so that whenever employees feel they are mentally harassed, they can talk to the concerned people.

The legal aspects of such issues are somehow not clear to me yet. Perhaps a few more rounds of discussions here will help me. I am trying to find a solution for affected people, such as what options employees have as per law or common corporate practice. Are they authorized to lodge a complaint at a nearby police station, or is there a different provision regarding this?

Thanks & Regards,
Dipesh

Dear Prabhakar,

The Elephant and the Rider Metaphor in Management

Jonathan Haidt's "The Elephant and the Rider" metaphor equally applies to every manager and the people managed by them in the organization. As a manager is the most obvious mentor to their subordinates, it is they who invariably shape the careers of their team members. Unfortunately, either due to the pressures of their position or the incompatibility of a particular subordinate with their own role, a manager may lose control and frown upon the subordinate. When this becomes routine, it leads to mental or emotional harassment of the employee concerned, who may be perceived as lacking the capabilities expected by the manager. However, insulting is different from indignation or reprimanding.

Legal Remedies for Employee Harassment

Though the discussion so far has covered the need for avoiding such bullying by managers and the importance of employee motivation and engagement, there is still a requirement for specific legal remedies for the affected employee. As far as I know, there is no special law on this subject in India, barring the PoSH Act. Of course, there are certain constitutional provisions, provisions under the CrPC, and the Industrial Disputes Act, 1947. However, they are cumbersome and time-consuming. If HR is as effective as suggested by our friend Mr. Dinesh, the Grievance Settlement Committee constituted under Section 9-C of the IDA, 1947, would help eradicate mental harassment of workman category employees by their supervisors or line managers at the establishment level itself. But what about the category of gold-collared employees across the hierarchy in organizations?

Handling Fault-Finding Managers

Of course, there are managers with the trait of ever fault-finding under the influence of their own feigned superiority complex, for they may actually be relatively inferior. Such managers are everywhere. A calculated "bliss of ignorance" by the subordinate employee is the only intelligent way of handling such managers to avoid further escalations.

Maintaining Mental Equanimity

This apart, every employee facing such an inevitable situation of workplace mental harassment should not lose their mental equanimity but rather respond to the situation by analyzing it dispassionately, assessing the various options available before them, weighing the options, and choosing the best option suitable to their long-term career benefits.

Responding to Rude Managers

A manager may, at times, be a little bit rude in their words, perhaps because of the degree of mistake or negligent act committed by the employee, and the employee should take it in good stead rather than retaliating. On the contrary, if it affects their self-respect, of course, they should appropriately respond, keeping the adage "Diamond cuts diamond" in mind.

Dear Colleague, The querist is concerned about the increasing cases of mental harassment in the organization caused by the rude behavior of the superior. It appears some efforts are made to sort out the issue in a meeting with the manager, the employee concerned, and HR, but to no avail, and the problem continues to persist. The querist, therefore, is looking for legal options the concerned employee has, including approaching the police if it helps.

Nature of Mental Harassment I think some actual data on incidents of rude behavior, if cited, would have been of great help. For example, what is the nature of mental harassment? Is it unprovoked shouting or gesturing, taunting, passing comments, deliberately insulting, or making inappropriate advances (at female staff), etc.? All this and similar behavior, if displayed by the superior/manager, warrants counseling by their superior and, if it persists, will merit disciplinary action such as issuing a show-cause notice, charge-sheeting, conducting a domestic inquiry, and awarding appropriate punishment as per Model Standing Orders/Service Rules or, in their absence, by following the Principles of Natural Justice.

Since it is an internal matter, I don't believe the police will be willing to interfere.

Management's Role in Addressing Rude Behavior In my view, the repetition and continuation of this type of rude behavior are due to the absence of effective action so far on the part of the management in nipping it in the bud. As there is no fear of disciplinary action, it appears the superior gets emboldened to continue.

While the cases I have cited above constitute obvious cases of mental harassment, it should be remembered that it is a matter of 'perception'. For one person, a particular behavior may appear rude, but for another, it may not. It is a tightrope walk in the absence of a clear-cut definition of mental harassment.

Preventive Measures On the preventive side of this issue, I share the same view as my learned colleagues that a culture of trust and fear-free open communication must be built through matching HR policies like the Code of Conduct at the workplace, and by institutionalizing and putting in place well-knitted HR practices.

Regards, Vinayak Nagarkar HR and Employee Relations Consultant

Dear Umakanthan Sir, having this discussion here on this platform is really helpful. I have gained different perspectives and will be able to see this situation in different ways in the near future. Ideas to deal with such a situation may include the following points which I have found based on your valuable inputs:

(1) The elephant and the rider metaphor: This clearly denotes that our emotional side is the elephant and our rational side is the rider.

(2) PoSH Act: Need to check the criticality and opportunities that lie here.

(3) Grievance Committee.

(4) Assessing the various options available.

(5) Diamond cuts diamond.

We need to study and judge each situation differently and then act accordingly based on the above inputs.

Dear Vinayak Nagarkar,

Yes, we are all concerned about the increasing cases of mental harassment in almost all software companies nowadays. Having these rounds of discussion with people and experts like you and all members above certainly changes our way of thinking and provides a different perspective on the same situation.

I have seen managers handle these situations very politically using their power. As suggested by you, having some actual data of incidences of rude behavior may help management to take strict action. I agree with you that "perception" plays a major role in all situations. I have also observed that people behave differently in front of different individuals.

We are mentoring HRs in different forums regarding these issues. Organizational HR policies need to be reviewed periodically as per the company's needs. For me, we cannot copy-paste policies from other organizations as policies should always be based on legal aspects and the needs of the company. This also emphasizes the importance of creating a "culture of trust" along with effective and well-communicated HR policies to all employees, which may help overcome these situations gradually.

Regards, Dipesh Prabhakar