The speed at which information spreads online can seriously damage a company, and ensuring an adequate grievance mechanism for disgruntled employees is crucial as the law balances ill intent with freedom of speech, writes Amit Anand

In the first week of September 2018, the Supreme Court of India, in a landmark judgment, decriminalized homosexuality, bringing cheer to millions of gay sex rights campaigners.

As the Indian gay community and their supporters erupted in celebrations, Gaurav, a former employee of Tech Mahindra, a large information technology services company, was busy writing an email to his former manager, a mail that he had sworn to write the day that homosexuality is made lawful in India.

His manager, who had by then gone on to become the chief diversity and inclusivity officer at the company, was openly homophobic and racist and had a history of bullying and jeering at him for his sexual orientation, he alleged.

Gaurav posted screenshots of the mail on Twitter, the social media platform, which went viral, subjecting Tech Mahindra to fierce online criticism. The company stepped in and conducted an investigation, and swiftly dismissed the offending employee.

While the company reacted quickly and did the right things, the whole incident brought a lot of unflattering attention in the couple of days it took the company to catch up with the situation, causing reputational damage to an international brand.

Social media plays an ever-larger role in the lives of both people and businesses. For companies, they have become more than a communication tool, they are business enablers and an important part of its brand-building exercises. However, it cuts both ways, and, as we have seen, can cause serious damage rather quickly to brands and businesses.

This was not the first case of a disgruntled or former employee taking to social media to vent their frustrations against a company, and surely not the last one. A disgruntled employee airing a grievance publicly shows that the employer has failed to provide a robust grievance redress mechanism.

Legality of ’emotional outbursts’

For an organization, it is important to have a culture where everybody feels valued, respected and equal. A grievance committee can play the role of a judicious platform within the organization, and recommend actions to management. It is also equally important to have a non-retaliation policy to protect the interests of employees who have chosen this route.

Having a robust employee grievance redress mechanism is also a legal requirement under the Industrial Disputes Act, 1947, and Industrial Employment (Standing Orders) Act, 1946.

Recently, Kerala High Court, in the case of Anil Kumar v Mahatma Gandhi University (2018), observed that an emotional outburst of a disgruntled employee through social media is part of his right to free speech. The university had suspended Kumar, an employee, for his sarcastic comments in a social media post targeted at the university.

In this matter, the court observed that “discipline and servitude are to be distinguished. If an employee speaks out on social media in a general perspective, which is not inconsistent with the collective interest of the institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of a public institution depends on how it accounts for democratic values. Free expression is the cornerstone of democratic values. Every functionary of public power, therefore, must command liberty to their constituents.”

This judgment helps us to understand the legitimate expectations an employee may have of an employer to hear their concerns in accordance with the principles of natural justice.

In certain circumstances, such a public outburst will intersect with the company’s interests, but it is important for employers to recognize the rights of employees in terms of their freedom of speech and expression.

It is also important to note that in 2015, in the Shreya Singhal v Union of India case, the Supreme Court had examined the questions related to the fundamental right of free speech and expression guaranteed by article 19(1)(a) of the Constitution of India. The immediate cause for concern in the writ petition was section 66A of the Information Technology Act, 2000, which had put restrictions on online speech by placing a provision of imprisonment for certain acts. This section was not in the act as originally enacted, but came into force through an amendment in 2009.

The Supreme Court struck down the amendment, calling it unconstitutional on grounds of violating freedom of speech guaranteed by the constitution. Indian laws provide space for constructive criticism. So, if an employee criticizes the employer without any malice, it is legitimate and fair as far as the law is concerned.

There are scenarios where a company may have chosen not to act on a complaint under certain circumstances. In one such instance, an employee working with a reputed organization was facing bullying on account of his ethnicity. Despite feeling harassed, the employee did not oppose it in clear words. The employee finally got another job, and before leaving the organization decided to raise a complaint.

However, the human resources department chose to ignore it because of the timing of the complaint. The employee felt hurt because of the company’s indifference, and used a social media platform to narrate the ordeal. This caused huge embarrassment and reputational damage to the organization, as the incident narrated by the former employee was true and the employer had failed to provide a reliable grievance redress mechanism.

In this case, even though the employee was moving out of the organization, it was the obligation of the employer to refer the complaint to a grievance redress committee, and act in accordance with the applicable laws and company policies. A thorough investigation into a complaint would have also helped the employer to stay on the right side of the law. And if, despite a fair outcome, the employee chose to take to social media, the law would then certainly come to the employer’s rescue.

do-dont's-law-firm-speech-talk

In the event of a complaint from an employee, here are the steps that a company should follow:

  1. The employee should be interviewed by an employee relationship manager; and if the employee has moved out of the organization, they should be contacted by the employer and a meeting should be organized at a mutually convenient time.
  2. An assurance of fair hearing and action must be provided to the disgruntled employee.
  3. The employee must be asked to immediately delete the social media post and acknowledge on social media that they have submitted the complaint to the employer or the previous employer.
  4. If despite assurances from the employer, the employee unreasonably refuses to delete the post, the employer should write to the social media platform provider mentioning the conversation with the employee and requesting it to remove the contents in accordance with rule 3(4) of the Information Technology (Intermediaries guidelines) Rules, 2011.
  5. The employee can be required to show cause for the violation of the company’s social media policy.
  6. The employee must be asked to provide written details of the complaint, along with evidence and the names of witnesses.
  7. The matter must be referred to the grievance redress committee, or the internal complaint committee, or the equal employment opportunity committee.
  8. A detailed investigation and inquiry must be conducted by the committee in adherence to the principles of natural justice, applicable laws and company policy.
  9. The committee then must submit a report to the management.
  10. Management, in accordance with the company policy and practices, should take action on the complaint.
  11. An opportunity to appeal should also be provided to the employee, in accordance with applicable laws and company policies.
  12. If the complaint is found to be frivolous, malicious and/or fake, the employee writing such posts on social media may be punished and a complaint against the employee should be filed before law enforcement authorities.

Harbouring bad intentions

There are also cases of employees spreading false and malicious information about employers with the intention of damaging their reputation. In such a scenario, the employer can take legal action to protect its reputation and punish the wrongdoer. the IT Act and the Indian Penal Code (IPC), 1860, provide adequate remedies. An employer, or any person against whom the false and defamatory statements are published, can file complaints under sections 499 and 500 of the IPC for defamation and loss of reputation.

According to section 499 of the IPC, “whoever, by words either spoken or written, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases excepted, to defame that person”.

An aggrieved employer may also choose to seek civil remedies such as compensation and damages as available under the law of torts. In order to stop an employee or group of employees from continuing to spread false and defamatory information against an employer, it is also advisable to seek temporary relief in the form of an injunction, asking the employee to refrain from writing or speaking against the employer until the court decides on the matter.

Obligations of intermediaries

The IT Act envisages provisions pertaining to the duties and obligations of “intermediaries”, which includes social media providers.

Section 79 of the IT Act provides for “safe harbour protection” to social media platforms, as they are not liable for third-party content, information, data, messages and communications if they have conducted proper due diligence and have not contributed or conspired in any way.

However, it also provides for a “notice and take-down mandate”. According to rule 3(4) of the Information Technology (Intermediaries guidelines) Rules, 2011, any person or business against whom false and defamatory information has been posted online must provide a notice to the intermediary to remove such false or defamatory content, and the intermediary should act on it within 36 hours. The intermediary must publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.

So, if an employer comes across content that is harmful, causes harassment, is blasphemous, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially and ethically objectionable, or unlawful in any manner and targeted to harm the reputation of the employer or its directors and officers, it must be reported to the intermediary and the social media company has to take appropriate action within the stipulated time.

Freedom of speech and expression is subject to reasonable restrictions and it is important for employees to be mindful of the repercussions of spreading false information.

Employers must have a well-constituted grievance committee, social media usage policy, fair service conditions, and a non-retaliation policy to create an environment of mutual respect in an organization and help employees find a platform to report their issues and concerns.

For large employers, it may also be useful to have an internal social media platform for their team members to share their experiences at the workplace, providing an opportunity for employees to vent their frustrations and problems. Employers must also make employees aware of their social media policy, related laws and the obligations of an employee, if the employee chooses to use social media as a platform to discuss their work or other related issues.

In a world where brand reputation is an important aspect of business and for consumers, customers, stakeholders and prospective employees, it is essential that employers deal with reputation risks in a proactive manner.

Amit Anand is a senior corporate counsel with NTT Data, a Japanese software services company.