ON UNCONSCIONABLE BARGAINS, ALL AROUND US

Does an employee have the liberty to say 'no' to standard employment letter wordings? Do they even stand a chance to negotiate with the almighty HR who stands at the door of their employment opportunity? Even if HR were to take it up internally, would their compliance team allow for any flexibility or leeway? If none of them bother, what is the role of the CEO or the Board?

- Srinath Sridharan & Steve Correa

"Contracts are the small print of our society, and like all small print, they are written by those who have the power to do so." - Richard Susskind

SADLY, THERE ARE A PLETHORA of unconscionable bargains everywhere: shockingly unfair, morally unjust, blatantly oppressive, and exploitative. Look around you, and you may discover some yourself.

Unconscionability is a legal concept stemming from the equitable principle of fairness in legal relations, whether contractual or otherwise. A contract may be challenged by a party to the same on the grounds that the same is unconscionable, if (i) such a contract contains harsh, oppressive and, therefore, unconscionable terms; or where (ii) the manner in which or the circumstances under which the contract has been entered into or the term thereof has been arrived at by the parties, is one which has caused an unjust advantage to the other party, or a disadvantage to the challenging party. This concept has been recognised by the Law Commission of India, in its 199th Report on Unfair (Procedural & Substantive) Terms in Contract.

Indian Employment Journey

In many organisations, employers coerce their employees (usually freshers anxious to secure their first formal job) to sign an employment bond that generally bars an employee from quitting the organisation, and/or joining some other organisation before she/he completes a certain period. These interns are expected to sign a bond of service. To set the record straight, in India, an employment bond is legal in so far as it prescribes a reasonable penalty in case of violation. More so, if the bond is not for an excessively long period and the amount of such reimbursement is not more than the actual amount spent by the employer on training the employee.