Nearly 9 months after the Act received Presidential Assent, the Central Government on 9th December 2013, has notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The notification of this Act is a small albeit important step in the direction towards ensuring free and fair working environments for women in society.
The Act proclaims that its principal aim is to protect the fundamental rights of women particularly her right to practice any profession, or vocation of her choice in a safe and healthy environment – an environment that is free from sexual harassment.
Among other things, the Act places the primary obligation on the employer organization to set up mechanisms to prevent, prohibit and redress grievances of all women in their work place (whether such person is an employee on the rolls or not). Sexual harassment has been defined widely to include conduct, which may be perceived to be harassment. The following would constitute sexual harassment under the Act:
- Physical contact and advances
- A demand or request for sexual favours
- Making sexually coloured remarks
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
As can be seen, the definition of sexual harassment is wide but also widely subjective.
Every employer is required to constitute an Internal Complaints Committee (“ICC”) at each location where it has branches, divisions or any other establishment. The ICC shall have majority women representation and each member shall hold office for 3 years. The ICC is a powerful body that shall have the same powers as a civil court under the Civil Procedure Code.
The constitution of the ICC shall be as follows:
1. Senior level woman employee,
2. Two other employees from within the organization dedicated to the cause of women
3. A social worker or someone from an NGO who has experience in and who is dealing in the cause of women.
The ICC will redress the grievance of the aggrieved woman employee by one of two means:
a) Acting as a conciliator and settling the issue between the woman and accused employee; or
b) Undertaking inquiry into the merits of the complaint and suggesting remedial action against the accused employee.
An aggrieved woman i.e. a woman of any age whether employed or not who alleges to have been subjected to any act of sexual harassment has the right to redressal of her grievance. The work place i.e. a company or such other similar establishment should ensure that effective mechanisms are in place for prevention and redressal of sexual harassment of women in the workplace.
It is to be noted that the term ‘work place’ is defined so widely that every establishment, including the smallest of them and transit places such as company buses or vehicles come within the purview of workplace. There is no prescription of a minimum number of workers etc. In fact, the term work place is intended to be given the widest possible width to ensure that maximum women come within its fold.
The definition of workplace (as applicable to corporates) includes any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, NGO, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service.
An aggrieved employee may complain to the ICC or a local complaint committee (a Government constituted committee) within 3 months from the date of incident of harassment. The ICC or the local committee may then proceed to act as conciliators to settle the same, which shall be recorded and copies handed over the aggrieved woman as well as the employee. Please note that no monetary settlement of any kind is permitted under the Act.
Subject to the above, the ICC or the local committee, as the case may be, may proceed to make an inquiry against the employee who has been accused of sexual harassment.
Under the Indian Penal Code, an act or gesture to outrage the modesty of the woman is a criminal offence. If a prima facie case is made out on receiving a complaint, employer / ICC should notify the police authorities for further criminal action against the person accused.
Rights of an aggrieved woman during inquiry
While an inquiry is being conducted the aggrieved woman employee has the right to:
a) Seek transfer to any other branch / division;
b) Leave of upto 3 months (in addition to the leave to which she would be entitled under the employment contract); or
c) Any other relief as may be prescribed.
The employer should intimate the ICC of any action taken in respect the above.
Upon completion of inquiry, if the accused employee is in fact found guilty of sexual harassment:
i) He shall be disciplined for misconduct as per the employment rules in place; and/or
ii) Deductions shall be made from his salary of an appropriate sum (as per the ICC) to pay to the aggrieved employee or her legal heirs.
Penalties for non-compliance
The law also mandates penalties for failure by the employer to comply with these obligations. For repeated offences, the appropriate government may cancel licenses to do business.
Duties of the Employer under the Act
- Constitute a standing committee (Internal Complaints Committee) for redressal of grievances of women employees at each of its braches, location of work place, divisions and sub-divisions;
- Display it prominently in the work place that such a committee has been constituted and aggrieved women can approach the committee;
- Display prominently the penal repercussions of sexual harassment in the work place;
- Have in place rules of conduct for employees to follow in this behalf, the rules should provide sexual harassment is misconduct and will have penal repercussions;
- Provide a safe working facility in the work place for women employees or other women who come into contact with the workplace;
- Organize workshops and awareness programmes to sensitize all employees to this issue;
- Provide necessary assistance to the committee inquiring into any complaint of an aggrieved woman including by securing attendance of witnesses etc. and making available necessary information;
- Provide timely reports to the committee;
- Providing all assistance to the local complaints committee constituted by the Government, when required.
Penalty for false accusations
The legislature is not wholly blind to the possibility of misuse of the provisions of this Act and also prescribes punishment for false and malicious complaint by a woman.
While the first reaction of any corporate is to sigh at yet another compliance mandate by law seemingly interfering with day to day business, the reality is this law will force conscientious managements to proactively hoist the quality of work life of women in the organization.
There is no denying that the Act is a double-edged sword and can be misused. But it brings into its fold all women in the country who choose to profess any profession or vocation of their calling. The rules do prescribe manner of conducting inquiry etc.
An analysis however, needs to be done on implementation of the provisions of the Act and whether there are any practical issues. For instance, while the Act prescribes that even under the RTI the complaint filed cannot be disclosed, there doesn’t seem to be any confidentiality obligation on the employer per se.It will be sometime before all walks of business are in a position to sensitize their employees and they become sensitive to dealing with these issues. It also appears to be a long wait for government authorities to align themselves with the object of this Act and ensure that no organization that violates this Act is allowed to renew its licenses and so on.
It is incumbent upon managements to put in place appropriate procedures / mechanisms as prescribed in the organization as a whole and managements need to take proactive measure to prevent, prohibit and redress sexual harassment in the workplace.