Tuesday, June 15, 2021
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A Safe Workplace is Every Woman’s Right

Gender equality is well stated in the Indian Constitution and the Fundamental Rights, amongst others. It makes certain equal opportunity and equal protection, ruling out discrimination on the grounds of sex, and thus facilitating equality of opportunity to all citizens in areas relating to employment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 has been initiated to support the Constitutional mandate and to guard women from sexual harassment at workplace.

The legislation is chiefly based on the guiding principle laid down by the Supreme Court of India in a milestone judgment in 1997. It enforces several duties on employers to offer a safe working environment for women and set structure for conformity and revelation.

Employers Should Have A Complaints Committee In Place

All employers with a workplace of 10 or more employees must form an Internal Complaints Committee by an order in writing. In case when the offices or administrative units are situated at ‘different places’ a committee must be formed 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 location but area offices in the same city could have a common committee.

The committee is in charge for carrying out an investigation into complaints of sexual harassment as per the legislation and prescribed rules. The employer’s primary duty is to conduct workshops and awareness programmes to sensitise employees, and jointly the employer and committee should take combined course of action to raise awareness.

The legislation gives a wide definition of sexual harassment, which entails any unwelcomed act or behaviour, whether direct or implied, and which amongst others cover sexually charged remarks, and verbal or non-verbal conduct of a sexual nature. Additionally, the legislation lays out certain situations which make wider the scope of sexual harassment, such as intrusion with work and building a threatening or unfriendly work environment. There may be occurrences where definite acts or behaviour may be characterised as harassment, but whether or not the suspected harassment is of a sexual nature may be tricky to ascertain. So when it is allowing for a complaint of sexual harassment, the committee must put into effect its judgement very cautiously. The committee members may look for direction from judicial examples when coming to a decision.

Employers should cautiously choose their committee members, making sure that at least some of them have some legal knowledge, or expertise in handling such matters. Employers may also think about organising training sessions for the members of the committee.

Safe Environment At The Office Premises And Beyond

Under the legislation, employers’ responsibilities are not restricted to offering a safe environment at the office premises. It firmly provides that the workplace includes any place visit by the employee arising out of or during the course of their employment, including transport there, provided by the employer. So the compass of the legislation is not limited to within the walls of the employer’s office premises.

A universal misunderstanding which employers hold is that if they do not have any women employees, they do not have to form a committee or confirm with the other legal provisions. It is significant to note that the legislation affords defence 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. Take  a case where a woman employee pays a visit at 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 also referred as a place of work. At the same time, as an aggrieved woman, she would also have grounds to approach the committee of the client organisation.

Employer Needs To Abide To The Decision

Post conducting an inquiry, the committee must come to a decision on a grievance and give its advice, which the employer must act on within a 60 day frame post receipt of the recommendations.

It is not comprehensible if the employer can go away from the committee’s advice, or whether they are obliged and must be complied with in letter and spirit. For example, the committee could advocate moving the complainant or the perpetrator, but the employer may not consider that to be practical from a business standpoint.

Employers are also accountable for offering help to the aggrieved woman if she chooses to file a police complaint. So, it becomes the responsibility of the employer to notify the aggrieved woman of her rights to file a police complaint.

Further, the legislation provides that employers should make the first move against the person responsible for the act under the Indian Penal Code or any other law in force but it appears that this is not essential in every case. However, where the alleged act of sexual harassment is of a serious nature, the employer or the committee may have to apply their duties very vigilantly and it may be essential to raise a police complaint.

Annual Report To Be Submitted To Both The Employer And The Local District Officer

The committee must organise an annual report for each calendar year, setting out the agreed details and the report must be submitted to both the employer and the local District Officer.

If no District Officer has been selected, the committee reports should be sent to the Department of Women and Child Development of each state.

Apart from raising awareness, the Government is looking at making possible the implementation of the legislation by taking measures to assign District Officers and introducing guidelines to clarify the issues not covered in the legislation which would help employers obey the legislation.

The legislation inflicts the penalty of a fine and in cases of recurring offence, employers may also have their business licences or registrations (issued by the Government authorities) annulled. Given that the law imposes a rigorous penalty for violation, it will be indispensable for employers to make sure compliance.

Kanishk Agarwal

(The writer is an Advocate and the founder of Critax Corp.Global.)

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