The principle of gender equality is enshrined in the Indian Constitution and the Fundamental Rights, amongst others, ensure equality and equal protection, prohibiting discrimination on the grounds of sex, and thereby providing equality of opportunity to all citizens in matters relating to employment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 has been introduced to uphold the Constitutional mandate and to protect women from sexual harassment at work.
The legislation is principally based on the guidelines set out by the Supreme Court of India in a landmark judgment in 19971. It imposes several duties on employers to provide a safe working environment for women and sets out a framework for compliance and disclosure. Since, the legislation is at a nascent stage of implementation, employers are facing practical difficulties while seeking to comply.
Every employer which has a workplace with ten or more employees must set up an Internal Complaints Committee by an order in writing. Where the offices or administrative units are located at 'different places' a committee must be set up at each unit or office. However, the legislation does not clarify whether 'different places' means different cities, or different states, or different areas in the same city. So employers may look at constituting at least one committee in each geographic area but branch offices in the same city could have a common committee.
The committee is responsible for conducting an inquiry and investigation into complaints of sexual harassment in accordance with the legislation and prescribed rules. The employer's principal duty is to conduct workshops and awareness programmes to sensitize employees, and together the employer and committee should take collective measures to raise awareness.
The legislation provides a wide definition of sexual harassment, which includes any unwelcome act or behavior, whether direct or implied, and which amongst others cover sexually charged remarks, and verbal or non-verbal conduct of a sexual nature. Further, the legislation sets out certain circumstances which broaden the ambit of sexual harassment, such as interference with work and creating an intimidating or hostile work environment. There may be instances where certain acts or behaviour may be characterised as harassment, but whether or not the alleged harassment is of a sexual nature may be difficult to establish. So when it is considering a complaint of sexual harassment, the committee must exercise its discretion very carefully. The committee members may seek guidance from judicial precedents when deciding complaints.
Employers should carefully select their committee members, ensuring that at least some of them have some legal knowledge, or expertise in handling such matters. Employers may also consider organising training sessions for the members of the committee.
Workplace and beyond
Under the legislation, employers' obligations are not limited to ensuring a safe environment at the office premises. It categorically provides that the workplace includes any place visited by the employee arising out of or during the course of their employment, including transport there, provided by the employer. So the ambit of the legislation is not restricted to within the walls of the employer's office premises.
A common misconception which employers have is that if they do not have any women employees, they do not have to set up a committee or comply with the other legal provisions. It is pertinent to note that the legislation affords protection to 'aggrieved women' who have the right to file a complaint with the committee and the definition of 'aggrieved women' covers a woman who may not be an employee.
So for example, in a situation where a woman employee visits a client's office on official business and suffers sexual harassment in the client office by an employee of that client, the woman would have grounds to file a complaint with her employer's committee. The woman's visit is during the course of her employment, so the client's office is treated as a workplace. At the same time, as an aggrieved woman, she would also have grounds to approach the committee of the client organisation. Several practical questions arise in such a situation, whether a joint inquiry will take place conducted by the woman's employer, or by the client, or if there would be two parallel inquiries. How would the employer's committee enforce an action against the perpetrator? If a complaint is filed with the police, is the committee still obliged to conduct an inquiry into the complaint? The legislation and the prescribed rules do not deal with these issues.
Action by the employer
After conducting an inquiry, the committee must decide on a complaint and give its recommendations, which the employer must act on within 60 days of receipt of those recommendations.
It is not clear if the employer can depart from the committee's recommendations, or whether they are binding and must be complied with in letter and spirit. For example, the committee could recommend transferring the complainant or the perpetrator, but the employer may not consider that to be practical from a business perspective.
Employers are also responsible for providing assistance to the aggrieved woman if she chooses to file a police complaint. So, it becomes the duty of the employer to inform the aggrieved woman of her rights to file a police complaint.
Further, the legislation provides that employers should initiate action against the perpetrator under the Indian Penal Code or any other law in force but it appears that this is not necessary in every case. However, where the alleged act of sexual harassment is of a serious nature, the employer or the committee may have to exercise their duties very carefully and it may be necessary to raise a police complaint.
The committee must prepare an annual report for each calendar year, setting out the prescribed details and the report must be submitted to both the employer and the local District Officer.
If no District Officer has been appointed, the committee reports are being sent direct to the Department of Women and Child Development of each state. The legislation is silent on the timescale within which the report should be lodged with the District Officer. If no timescale is given by the applicable Department of Women and Child Development or the local District Officer, the committee should prepare and submit their report to them and the employer within a reasonable timeframe.
In addition to raising awareness, the Government is looking at facilitating the implementation of the legislation by taking measures to appoint District Officers and introducing guidelines to clarify the issues not covered in the legislation which would help employers comply with the legislation.
The legislation imposes the penalty of a fine and in cases of repeated offence, employers may also have their business licences or registrations (issued by the Government authorities) cancelled. Given that the law imposes a stringent penalty for contravention, it will be imperative for employers to ensure compliance.
Footnote1. Vishaka v State of Rajasthan, AIR (1997) SC 3011
This update is authored by Clasis Law, Clyde & Co's associated firm in India
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.