By - Smita Paliwal on May 17, 2020
During the Covid-19 situation, employers are faced with severe financial stress, which has led a few of them to resort to certain calculated actions that affect employees, including reducing salaries, reducing holidays, putting employees on the bench, loss of pay, layoffs, furloughs and in extreme cases, even retrenchment and Termination. Employers are confronted with difficult choices, especially when their employees or former employees issue threats of violence or other actions. These threats can manifest in a number of different forms and can range from threats made by terminated employees against the management to threats made about causing hurt to themselves, committing suicide by employees, etc.
While it is something employers hope they never have to handle, it is something the employers should be prepared to deal with as HR and legal professionals. Hearing that one of your employees may be considering suicide is a terrible revelation, so it is understandable that employers want to respond promptly. Employers are put in a difficult spot, as they are concerned about the health and wellbeing of their employees, but must also respect an employee's privacy. It is generally advisable to avoid asking your employee directly if they are having suicidal thoughts or if they have a mental illness, as that would be an unlawful medical question.
Section 306 of the Indian Penal Code, 1860, deals with the abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.
In Vaijnath Kondiba Khandke v. State of Maharashtra, 2018 SCC OnLine SC 545, the Supreme Court has held that where there was no suicide letter written by the deceased, there is little chance of the employer being prosecuted for Abetment of Suicide. However, in the same judgment, the Supreme Court held that, if a situation is created deliberately so as to drive a person to commit suicide, there would be room for attracting Section 306 of IPC.
In view of this, if an employee communicates on email or social media or by any other written, telephonic or virtual model that the employer is responsible for his suicide, it may be sufficient reason for the police to register a criminal complaint and initiate an investigation against the employer. In such a situation, directors and senior managers of the employer can be included as accused, by the investigation agency.
Your initial response, in such eventuality of threats, should be geared toward ensuring the employee’s basic safety. In such cases, inaction by the employers may also be treated as abetment. Hence it is important to have an internal policy, procedure, and process to encounter such threats.
First and foremost, all threats of suicide should be taken seriously and preventative action should be taken as quickly as possible. If it appears an employee is planning something immediately or has posted an email or on social media about committing suicide, etc (the employee has told you or another employee about a specific plan of action, posted on social media like Facebook or Twitter, etc.), report to the police at the first and most immediate instance.
A written police complaint, providing details and complete information, must be made immediately. If you are not able to do that, please call the emergency helpline number 100 or the nearest police station where the employee resides and report the incident. It may be important to record the phone call and document the date and time, in the event of any dispute. The management may also report to the nearest anti-suicide helpline as an additional measure.
The next step is to reach out to the employee’s emergency contact if they have provided one, and urge the emergency contact to take the employee to get help. You may also provide the police emergency contact and the anti-suicide helpline number, so as to help them get guidance on handling the situation.
If you are unsure of the immediacy or seriousness of the situation (the threat came your way through rumor, or the employee only made vague remarks or threats), you should conduct an investigation before initiating action. If the threat becomes known through second-hand information, it may be necessary to investigate the circumstances before taking any action.
Though unlikely, it is possible the comment was a casual remark, made in poor taste, in reaction to employment-related situations that may be addressed between the employee and the management. Assure the person who provided the information that the employee’s safety is more important than maintaining confidentiality. When it is not possible to obtain confirmation about the validity of the threat, it is better to seek professional intervention. It is important to document all events that preceded the threat. Record the employee's exact actions and words, as well as other events that occurred through the duration of the incident.
Include the date, time of day, and your interpretation of the employee's attitude and state of mind. Note whether another person witnessed the threat. Notify the human resources department of the incident and provide all the documented information. Accurate and precise documentation will help the management and HR evaluate the severity of the threat and when discussing the incident with the employee at a later time.
Counseling by the Human Resources department or external counselors may also be an excellent initiative. However, its effectiveness, especially with retrenched or terminated former employees, during the Covid-19 situation is still not tested. Not reporting and handling the situation in the right manner may lead to criminal liability for the employer and management.
Do NOT make any judgments concerning whether or not the threat is “real”. Report each threat. All threats are to be taken very seriously.
Disclaimer: This update is only for information purposes and is not legal advice. You are requested to seek legal advice before you take any legal and/or business decisions.
