Concepts such as “Happy Workplace”, “work-life balance”, “gender neutral workplaces”; are often touted amongst companies globally. Unfortunately, this does not necessarily translate into better compliance with mandatory employment law requirements. India’s first legislation specifically addressing the issue, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development and subsequently, “POSH Rules” were also notified.
Despite the growing public awareness and indignation against sexual harassment at the workplace, several businesses in India continue to turn a blind eye to the requirements of the new anti-sexual harassment law in India. A few tips and pointers main points for organisations to be in compliance with the main provisions of the law are as under: Note that these requirements apply to all organisations, whether domestic entities or foreign entities with branches or offices in India. Hence, compliance under the law has to be adhered by each office of any organisation operating in India.
1) An organisation must aim to create a workplace an equitable and safe workplace.
2) It shall ensure that the company has a written anti-sexual harassment policy. In addition to this, ensure that the names and contact details of the Internal Complaints Committee members and the penal provisions under the law are clearly displayed on notice boards in every office or unit;
3)There must be a Gender-Neutral policy, over and above the law, although the law mandates only for the protection of Women. The policy must be in the language understandable by the majority of the employees.
4) Regular sensitisation programs for their employees must be provided periodically by the employer and employees should be properly educated on the Sexual Harassment legislation and policy.
5) The organisation must educate its employees about on definition of basic terms such as an employee, workplace and sexual harassment as laid down in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.
6) They must educate employees on the importance of maintaining professional boundaries and to be more observant of the comfort level of others. Sexual harassment training focuses on being more aware of their boundaries while consciously seeing how their behaviour impacts the person at the receiving end. It is about maintaining a respectful, dignified and inclusive working environment for all employees.
7) Constitute an Internal Complaints Committee with a minimum of four members with following composition:
i) Presiding Officer: Woman employed at a senior level at the workplace from amongst the employees.
ii) 2 or more members from amongst employees who are preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
iii) External member: From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.
8) Since ICC has both Social and Legal responsibilities, such that its constitution must be well equipped to handle that immense responsibility.
9) The Management, Employer and the ICC must support both the parties to the issue – Complainant and Respondent, and The Local Complaints Committee must provide with their support to all the three parties – Complainant, Respondent and The Company. Local Complaints Committee are committees that are constituted by the government to oversee the implementation of the Act in a District.
10) There should be no bias in the proceeding of the ICC. If such bias has been proved by any party, then the Act mandates for a dissolution of ICC and new ICC is to be framed by the Organisation.
11) It is mandatory for the ICC to take up the case within 7 days from the date of complaint and also forward a copy to the respondent. The respondent is required to submit his reply within 10 days. ICC must complete the inquiry within 90 days from the receipt of the complaint. The Inquiry report has to be issued within 10 days from the date of completion of inquiry. The employer is required to act on the issued recommendations within 60 days of receipt of the Inquiry report
12) ICC is empowered to summon witnesses, enforce the attendance of any person and examine witnesses under oath. ICC may also require the discovery and production of documents.
13) ICC must follow Principles of Natural Justice, such that questions raised by the Committee does not attack the character of the Complainant and does not ask for embarrassing details that might end up in victim-shaming. Equal importance must be given to the respondent’s version of the facts without assuming a tone that he/she is guilty.
14) The complainant has three other recourses in case the matter is not handled properly by the ICC:
a) The Law does not provide for an internal appellate mechanism within any organisations. Hence, the Complainant or Respondent can ask for reconstitution of the committee if they are able to prove bias.
b) The person aggrieved from the recommendations made by ICC can file an appeal to the Court or Tribunal, as prescribed under the Service Rules, within a period of ninety days of the recommendations.
c) Alternatively, the complainant has the right to file a criminal complaint under the Indian Penal Code. In such cases, the Organisations and ICCs are required to provide support, as requested.
15) Prepare and file Annual Reports – of number of complaints received and the manner in which it was disposed off. Certain details on sexual harassment complaints received need to be included in the Annual Report of the Company and in the report to the relevant District Officer. Companies need to ensure this is done.
16) Upon inquiry if the allegation is proven to be true, take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent. Also compensation shall be deducted from the salary of the respondent and granted to the complainant, with regard to —
(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.
17) Where the Internal Committee or the Local Committee arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to her.
A failure to abide by these provisions of the law may lead to fine and cancellation of the registration and license of the relevant company and given the recent press releases by the government, it is expected that strict action may be taken against organizations that fail to comply. Also, it remains unclear to what extent senior management may be held liable for failures of the Company to comply with this law. The detrimental effect of public scrutiny and ridicule for failures by a company to provide adequate protection against sexual harassment at its workplace and to its employees is perhaps more of a deterrent and will hopefully push more and more companies to comply at the earliest.