Overview
Indian employers, akin to their global peers, are increasingly realising the importance of a safe and amicable work-place - for all sexes. This requires a conscious policy directive aimed at preventing workplace harassment instances coupled with an institutional mechanism for redressal of complaints in a quick, transparent and just manner. This article provides an overview of the Indian law on prevention of sexual harassment at workplace and sets out to share some 'best practices' towards mitigating risks of non-compliance and making the workplace environment conducive to all employees.
The Law
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Act") and the underlying rules (Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013) form the applicable law in India to prevent and address instances of sexual harassment of women employees. The Act was introduced with the twin intention of checking the issue of sexual harassment of women against women and creating a conducive and safe environment at workplace. The Act provides that no women shall be subjected to sexual harassment at 'workplace' - regardless of the nature of business being conducted or size of workforce. It is noteworthy that the Act covers actions of employees not just within the 'workplace', but also extends to any place visited by an employee in course of her employment. The Act provides protection to all women employees, who may be employed by the organization (whether directly or indirectly) or may be visiting the 'workplace'.
Prevention through Policy - Redressal through Committee
To achieve the aforementioned objectives of prevention and redressal of sexual harassment complaints, the Act mandates employers to, inter-alia, formulate a policy against harassment ("Policy") and constitute a body to administer the policy. All employers, irrespective of the number of employees, are mandated to adopt a policy against sexual harassment at workplace. It is worthwhile to note here that although the Act extends protection only to women employees, employers are at liberty to keep it gender neutral (i.e. by extending protection to all employees). Under the Act, an employer of a 'workplace' which employs 10 (ten) or more than 10 (ten) employees is required to constitute an 'internal complaints committee' ("ICC"). Complaints in 'workplaces' with less than 10 (ten) employees are required to be taken up at a local complaints committees ('LCC") that are set up by the local area administration. The Policy document sets out the organization's intent in discouraging harassment and disseminates the rights of employees.
Any aggrieved women may approach the ICC with her complaint either directly or through her relative/co-worker/friend, etc. The employer, albeit through the ICC, will be mandated to conduct an impartial and independent inquiry and provide its findings to the employer. To discharge its powers effectively, the ICC is armed with the ability to summon respondent or witnesses, record statements and examine documents. ICC is within its rights to, inter alia, recommend interim measures to the employer, viz. transfer of the aggrieved employee or the respondent, granting leave to the aggrieved employee or re-assignment of portfolios.
The ICC proceedings are required to be conducted in a time-bound and confidential manner. Recent judicial pronouncements (as in Maersk Line India Private Limited v RP Television (India) Private Limited (CS No 183 of 2016)) cast an obligation of maintaining confidentiality on all parties - including the aggrieved employee.
Where the allegations against the respondent are established, the ICC may recommend proportionately severe actions to the employer, including, amongst others, requiring respondent to issue written apology; withholding promotion/increment, issue censure or terminate employment of the respondent; or deduct wages of the respondent to compensate the aggrieved employee. The Act has also laid down adequate mechanisms for punishment of false/malicious complaints and false evidence.
If an employer fails to constitute an ICC or does not comply with the requirements prescribed under the Act, a monetary penalty of up to INR 50,000 (approx. USD 900) may be imposed. A repetition of the same offence could result in imposition of twice the punishment and/or cancellation/revocation of any statutory business licenses or registrations.
Best Practices for Employers
The Act is relatively nascent, and the jurisprudence around this legislation is at a developing stage. Nevertheless, there have been instances in the past of governmental crackdown owing to non-compliances with the provisions of the Act, and we suggest that employers must be alert with respect to their duties under the Act. On the basis of our experience in assisting organisations in effectively implementing the Act, we have collated a list of some of the best practices in complying with the Act:
(a) All complaints, irrespective of complainants, are equally important: The Act does not distinguish between employees – whether employed directly or indirectly, and neither should the employer. Complaints from complainants who are hired through contractors should be treated at par with any other complaint. Similarly, complaints against senior management should be kept devoid of undue influence.
(b)Keep it approachable: Take measures to ensure that aggrieved employees do not face emotional or logistical impediment in approaching the ICC. Build confidence, increase awareness, sensitise employees the workplace is no longer be an all boys' club.
(c)Act swiftly and impartially: Avoid delays. Initiate action promptly. The employer must ensure complete transparency and impartiality while appointing members to the ICC. In turn, the ICC should maintain impartiality in their functioning.
(d) Confidentiality: Privacy has recently been recognised as a fundamental right of Indian citizens. Ergo, employers must also act in a manner to uphold the individual right. Employers (and the ICC) should ensure that information related to a complaint (including the identity of complainant / details of the complaint) is not disclosed to the public, press or media in any manner. Of course, the relevant carveouts regarding disclosures pursuant to judicial requirements apply.
Conclusion
Recent instances at both international as well as domestic level, have brought the systemic problem of sexual harassment at workplace to the forefront. Stakeholders, at all levels, from the shop-floor to boardroom and up to the investors, should be sensitised of the importance of an equitable workplace. In our view, the Act will be instrumental in providing a safe working environment for women employees and is equipped to ensure that Indian employers lead the way, globally, in a safe work environment. The positive correlation between lower levels of harassment and higher job satisfaction amongst employees is axiomatic, and a definite win-win for stakeholders.
Anshul Prakash, Partner, Khaitan & Co
