Responsibility of Corporates to Implement the law on Sexual Harassment By Sunil Kumar Partner

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Object: To provide protection against sexual harassment of women employees at workplace Protect the constitutional Right to Equality of women Prevention & Redressal of complaints pertaining to harassment

What constitutes sexual harassment and what the male/female employees should be aware of?

What is Sexual Harassment? S.2(n) Sexual harassment includes any unwelcome - act or behavior Includes physical, verbal or non-verbal conduct of sexual nature

Physical “Physical contact and advances” of sexual nature illustrative- excessive hugging, kissing, patting, touching a person’s clothing, hair or body, etc.

Verbal- not defined “Demand or request for sexual favors” “Sexually colored remarks” Illustrative - whistling, sexual comments about a person’s body, spreading rumors about a person’s sex life etc.

Non-verbal – not defined “Showing pornography” Illustrative- elevator eyes, following the person, unwelcome facial expressions, etc.

Circumstances connected with acts or behaviour amounting to Sexual Harassment S. 3(2) Promise of preferential treatment in employment Threat of detrimental treatment in employment Threat about present or future employment status Interference with work Creating an intimidating, offensive or hostile work environment Humiliating treatment likely to affect health or safety

Key Definitions S.2 Sexual Harassment - Unwelcome behaviour or act (2(n)) Workplace - Private Sector Org. or any place visited during the course of employment (2(o)) Employee - Person hired on permanent, temporary, adhoc or voluntary basis. (2(f)) Employer - Person responsible for management, control and supervision of workplace (2(g))

Internal Complaints Committee (ICC) - Instituted at workplace for redressal of harassment complaints Local Complaints Committee - Instituted at district level for redressal of harassment complaints by the District Officer District Officer - District magistrate who discharges functions under this act

Basic Rights and Privileges of Women at Workplace Understanding the nature of conduct amounting to sexual harassment Right to a safe working environment Right against sexual harassment at the workplace (S.3(1)) Right to make a complaint (S.9) Right to redressal of grievance (S.9) Right to compensation for emotional and physical suffering (S.15)

Role of Employer

Duties (S.19) Provide a safe working place – make employees aware of the law Organize awareness programmes for employees, sensitizing them with the provisions of the Act Cooperate and assist aggrieved woman in filing the complaint Provide assistance to file a police complaint

Duties Constitute ICC Display in the order constituting the ICC, the penal consequences of acts of sexual harassment Treat sexual harassment as misconduct under the service rules and initiate action for misconduct Monitor reports by the ICC

Establishment of ICC It shall consist of : Woman Presiding Officer Atleast two members committed to the cause of women or having experience in social work or having legal knowledge One member from Non-Governmental Organization ‘familiar with issues relating to sexual harassment’ (R.4) Half of the ICC members to be women

Qualifications of External ICC Member Person having expertise on issues relating to sexual harassment May include: – A social worker with min. 5 years’ experience in the field of social work leading to creation of favourable conditions for women and addressing workplace sexual harassment issues – A person familiar with labour, service, civil or criminal law

Procedure under the Act for Redressal of Harassment cases

Procedure for Redressal of Complaints Step 1: A written complaint to ICC within 3 months. (S.9 r/w R.6) – Conciliation: On aggrieved woman’s request, ICC may take steps to settle the matter before inquiry (S.10) Step 2: Inquiry by the ICC as per Service Rules and principles of natural justice (also where conciliation fails) Step 3: ICC to give recommendations to the employer Step 4: Report to be sent by ICC to employer or District Officer

Who can file a complaint? (S.9 r/w R.6)  Aggrieved woman In case of physical incapacity Through a relative or friend, co-worker, an NCW/SCW officer or any person having knowledge of the incident, with the victim’s consent

In case of mental incapacity Relative or friend; special educator; qualified psychiatrist or psychologist; legal guardian or authority Any person with knowledge of the incident, jointly with any of the above Incapacity due to any other reason: Any person who has knowledge of the incident, with victim’s written consent

Compensation Aggrieved woman to be compensated for (S.15) Emotion and physical suffering Loss in the career Medical expenses Interim relief for victim (S.12 r/w R.8) Transfer her to another workplace Grant her leave upto three months Compensation to be deducted from salary of the respondent

Penal Consequences As per the service rules applicable to the respondent – Case to be treated as that of misconduct (S.11 r/w S.19) Where no service rules are in place: (S.11 r/w R.9) – Any action including: – Written apology – Warning, reprimand or censure – Withholding of increment/promotion – Counselling session or community service – Termination from service

How HR and legal teams can frame effective anti-sexual harassment policies Inquiry to be made with principles of natural justice Internal policy/HR Manuals for prevention and redressal of harassment to be formulated Orientation, capacity and skill building programmes for ICC members Display contact details of ICC at the workplace

Unresolved Issues Terms of Settlement in S.10 – Would such conciliation bar an action under the IPC? Post inquiry victimization – covered by S.3 – Can the victim file a subsequent complaint? Suo-moto action by the Employer for the “misconduct” of respondent under Service Rules Variation from definition under the IPC – ‘intention’ irrelevant at the workplace?

Sunil Kumar Partner Thank You!

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