India-based employees do not have a ‘right’ to work remotely unless mandated by a government order (lockdown order etc.) The Indian courts have noted that an employer has the authority to determine what work needs to be done and how the work ought to be performed. Therefore, depending on business requirements, the employer may choose the mode of working for the employee. Thus, while employers may require/allow the employees to work remotely (on account of governmental orders or otherwise), the employer may, at his discretion, require the employees to report to the physical office (and the employee cannot unjustifiably refuse to report to the office and insist upon working from home), unless contractually agreed that the employee will be working remotely permanently.
Various reports and surveys suggest that employees have overwhelmingly responded to flexible-working arrangements. Many analyses have shown that there has been considerable improvement in employee productivity and morale. As part of the 2022 State of Remote Work report, ‘86% of employees either wanted fully-remote or remote-first work environments going forward’. Further, a survey by Gartner reveals that ‘50% of Indian Hybrid Workers Consider themselves More Productive When Working Remotely’.
Until now, the labour laws are silent and do not provide any guidance on remote working. Indian labour laws only prescribe the maximum number of hours an employee can work a day/week. Working arrangements (remote, workplace or hybrid) can be contractually agreed between the employer and employees. Even though it is not statutorily required, we still advise employers to document such arrangements (either by way of a policy or by way of an amendment to the existing employment contract) to clarify the terms and conditions of the working arrangement.
The flexible working hours and the work-from-home concept were specifically recognised in Maternity Benefit (Amendment) Act, 2017, in relation to working mothers. This Act makes it legal that in cases where the nature of the work assigned to a woman is of such nature that she may work from home, the employer may allow her to work from home for such period and on such conditions that the employer and woman may mutually agree.
The law on the protection of women from sexual harassment The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 applies to employees while they are working from home, given the extended definition of “workplace” that includes “a dwelling place or a house”. Employers need to be careful to ensure that there is no abuse of online means of communication, such as video calls, in the process of monitoring their employees, which may lead to workplace sexual harassment-related claims.
However, where an employee employed in India is moving to a foreign country to work remotely, and it duly agreed between employer and employee, the Indian employer will need to comply with applicable Indian labour laws concerning benefits, consultation, flexible work issues, worker health and safety obligations and taxes. The employer shall be required to comply with PF, Maternity, POSH, working hours, and paid leaves.
India has labour laws concerning compensation payable by the employer for any personal injury caused to an employee “arising out of and in the course of” employment. While these laws have been extended in cases where an employee was travelling on official duties, the actual incidents yet to come across a specific precedent related to remote working. However, labour laws have been advised to interpret widely, especially in favour of the employees; employers should also ascertain whether their insurance coverage applies to employees working remotely.
In the specific case of the hiring of an employee, say, for example, living/moving in Qatar, we advise covering below in the employment contract and related policies-
- should be allowed to work from Qatar subject to the condition that her base location will always be India or any other location as may be determined by the Company.
- will keep updated with the correct residential address, status and location from time to time to the Company.
- The provision w.r.t transport facility like flight charges, stay, and other out-of-office expenses in case needs to report to her base location physically should be mentioned by the Company.
- If the Company is allotting a laptop and it becomes unserviceable, how will the repair take place, and how will the new laptop be issued once an employee is out of India?
- How much cost of internet and other expenses will the company reimburse as the cost will be different for the countries regarding the utility expenses?
- Any other business-specific point.
Remote working as a concept is evolving. employers and employees have faced new challenges that require agility in legislation. There might be issues that need to be assessed on a case-to-case basis as these frameworks mature.
If you are struggling with employment-related matters and issues, please feel free to reach out to us.
Happy Reading!
Shilpi Kulshrestha & Kanika Garg
