Prevention of Sexual Harassment at Workplace

Sexual Harassment at the Workplace (SHW) has remained one of the central concerns of the women’s movement in India since the early-’80s. The Hon’ble Supreme Court of India, in 1997 …

Sexual Harassment at the Workplace (SHW) has remained one of the central concerns of the women’s movement in India since the early-’80s. The Hon’ble Supreme Court of India, in 1997, in the Vishaka Judgment, for the first time, acknowledged sexual harassment at the workplace as a human rights violation. In its judgment, the Supreme Court outlined the Guidelines making it mandatory for employers to provide for sympathetic and non-retributive mechanisms to enforce the right to gender equality of working women. As per the Vishaka Judgment, the Guidelines, until such time a legislative framework on the subject is drawn-up and enacted, have the effect of law and the Guidelines are to be mandatorily followed by organizations, both in the private and government sector. While there were several attempts made to enact a law on this subject previously, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was eventually passed by the Lower House of the Parliament (Lok Sabha) on September 3, 2012, then passed by the Upper House of the Parliament (Rajya Sabha) on February 26, 2013, and received the President’s assent on April 22, 2013. However, there is hiccup as ‘to punishment clause for filing of a false and malicious complaint by the complainant against the Respondent’ as if the section prevail under the Act then this will deter the women to come forward and file even the genuine cases.

In the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 the word sexual harassment[1] has been defined as to includes any one or more of the following unwelcome acts or behaviour whether directly (whether directly or by implication) namely:—

1. physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

It is further clarified that verbal harassment that is sexually coloured can constitute sexual harassment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“SH Act”) is a central legislation and is applicable to the whole of India. The SH Act applies to every workplace, as defined under section 2 (o) (ii) of the SH Act, which includes almost all types of organisation, i.e. private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service.

A. FORMATION OF SEXUAL HARASSMENT POLICY:

As a practice, every organisation should formulate and frame a ‘sexual harassment policy’, which would contain the definition of sexual harassment; name, email address, office/residential address and phone number of all the ICC members along with the process of complaining which shall be in line with the provisions as laid down herein, as a part of the HR manual.

B. APPLICABILITY:

Although the SH Act is applicable to all the workplace/organisations, however, only such workplace where 10 or more employees are employed shall constitute an internal complaints committee for each workplace. On the other hand, in the event, where a workplace has less than 10 employees and are not mandated to constitute ICC, an aggrieved woman experiencing sexual harassment has a right to file her complaint before the Local Complaints Committee, which is set-up at the district level by the District Officer, which constitutes:

1. Chairperson: An eminent woman in the field of social work and committed to the cause of women;
2. One Member: among women working in the block, taluka or tehsil or ward or municipality in the district; and
3. Two Members: among which one shall be a woman. These members shall be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Further, at least one among the two members must have a law background.

Now, the first question that arises is, who can be a complainant under SH Act?

The SH Act has given a wide definition of an employee so as to cover regular, temporary, ad hoc employees or individuals on a daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name, however, the SH Act aims to protect women from sexual harassment at “workplace”. Therefore, the SH Act is a gender-biased legislation which protects women from sexual harassment and the protections under SH Act are not applicable to ‘men’.

It further leads to a question that what is a workplace?

The SH Act has given an extended definition of ‘workplace’, and has included the government offices, private sector offices, NGOs, trusts, hospitals, sports institutes, stadiums, or offices of all services providers, and has further included any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey, etc.[2]

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Hon’ble High Court of Delhi has clarified that the definition of ‘workplace’ is not confined to ‘office’ but would extend to any place visited by the employee arising out of or during the course of employment including transportation by the employer, shall fall within the definition of ‘workplace’, and has laid down a set of principles to determine ‘workplace’, i.e.,

1. proximity from the place of work;
2. Control of the management over such a place/residence where the working woman is residing; and
3. Such a residence has to be an extension or contiguous part of the working place.

C. CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE (“ICC”):

• Every employer of a workplace shall constitute a committee to be known as the “Internal Complaints Committee” provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the ICC shall be constituted at all administrative units or offices, where 10 or more employees are employed. For the abundance of clarification, an ICC is required to be set up at every branch/office of the company wherein at least 10 employees are employed.
• The ICC shall consist of the following members to be nominated by the employer, namely:

1. Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees.
2. Not less than 2 members from amongst employees. Preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
3. External member from an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.

• The Presiding Officer and every Member of the ICC shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.
• The member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances by the employer for holding the proceedings of the ICC, as may be prescribed.

D. PROCEDURE TO LODGE A COMPLAINT UNDER THE ACT:

The complaint is needed to be lodged within 3 months from the date of the incident along with any documentary evidence or names of witnesses if available. The committee can also extend the timeline to another 3 months if it is satisfied with the reasons which prevented the lodging of a complaint within the first 3 months. The complaint shall be in any form whether through phone or email but every oral communication should be followed up with the written communication and in any case where a complaint cannot be made in writing then the presiding officer or any member of the committee shall assist the person for making the complaint in writing.

In case if an aggrieved person is unable to lodge the complaint then any person who is having knowledge of the incident or any family member/ relative/ friend or co-worker can lodge the complaint on his/her behalf.

ICC can try and make parties to settle but monetary compensation is not the basis for settlement. If the aggrieved person is not ready to settle, then ICC will inquire into the complaint and both the parties will get a chance to be heard and complete the inquiry within 90 days. After the inquiry, if the person who committed such act is found guilty then corrective action is taken by the appropriate authority. Corrective action includes:

• Formal apology;
• Transfer of the person to another department;
• Suspension or termination of services of the employee found guilty for such offence;
• Counselling; and
• A written warning to the concerned employee and a copy of it is maintained in his record.

E. CREATING AWARENESS:

The employers have a legal responsibility to effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment and provides a detailed framework for prevention, and redress processes, carry out awareness and orientation for all employees, widely publicize names and contact details of ICC members and ensure capacity and skill-building of the ICC.

F. FILING OF THE ANNUAL REPORT:

The employer is required to file an annual report to the district officer every year and shall include in its report the number of cases filed if any, and their disposal under the SH Act. Further, even if there are no cases of sexual harassment registered, the same needs to be declared to the district officer under the said SH Act.

Further, section 134 of the Companies Act, 2013 read with rule 8 of Companies (Accounts) Rules 2014 mandates every organization/employer to make a statement in the Director’s Report that it has complied with the provisions regarding the constitution of the ICC.

G. CONCLUSION

The employers are advised to understand the cost of sexual harassment that not only the individual but also the employers/establishment suffer. While the individual undergoes psychological suffering, behavioural change, Stress-related physical and mental illness, Professional losses such as quitting from employment, the employer/establishments undergo issues such as low productivity due to impaired judgment, compromised teamwork, demotivation, absenteeism, hindered progress due to lack of team spirit and trust and the enterprise/employer loses its image in the labour/employee market. Therefore, it is advised that all employers shall strictly abide by the SH Act and safeguard the interest of the women employees.

Authors: Prashant Jain, Co-Founder & Partner; Abhishek Gupta, Associate.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. For any queries, the authors can be reached at (i) prashant@samistilegal.in (ii) abhishek@samistilegal.in.

[1] Section 2(n) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[2] Section 2 (o) of SH Act.

Updated as on April 04, 2020

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