A SAFE WORKPLACE EVERY WOMEN'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 andRedressal) Act 2013 has been initiated to support the Constitutional mandateand to guard women from sexual harassment at workplace.
The legislation is chieflybased on the guiding principle laid down by the Supreme Court of India in a milestonejudgment in 19971. It enforces several duties on employers to offera safe working environment for women and set structure for conformity and revelation.
Employers Should Have AComplaints Committee In Place
All employers witha workplace of ten or more employees must form an Internal Complaints Committeeby an order in writing. In case when the offices or administrative units are situatedat 'different places' a committee must be formed at each unitor office. However, the legislation does not clarify whether 'different places'means different cities, or different states, or different areas in the samecity. So employers may look at constituting at least one committee in eachgeographic location but area offices in the same city could have a commoncommittee.
The committee is incharge for carrying out an investigation into complaints of sexual harassmentas per the legislation and prescribed rules. The employer's primary duty is toconduct workshops and awareness programmes to sensitize employees, and jointlythe employer and committee should take combined course of action to raiseawareness.
The legislation givesa wide definition of sexual harassment, which entails any unwelcome act or behaviour,whether direct or implied, and which amongst others cover sexually chargedremarks, and verbal or non-verbal conduct of a sexual nature. Additionally, thelegislation lays out certain situations which make wider the scope of sexualharassment, such as intrusion with work and building a threatening or unfriendlywork environment. There may be occurrences where definite acts or behaviour maybe characterised as harassment, but whether or not the suspected harassment isof a sexual nature may be tricky to ascertain. So when it is allowing for acomplaint of sexual harassment, the committee must put into effect its judgmentvery cautiously. The committee members may look for direction from judicial exampleswhen coming to a decision.
Employers should cautiouslychoose their committee members, making sure that at least some of them havesome legal knowledge, or expertise in handling such matters. Employers may alsothink about organising training sessions for the members of the committee.
Safe Environment At The Office Premises And Beyond
Under thelegislation, employers' responsibilities are not restricted to offering a safeenvironment at the office premises. It firmly provides that the workplaceincludes any place visit by the employee arising out of or during the course oftheir employment, including transport there, provided by the employer. So the compassof the legislation is not limited to within the walls of the employer's officepremises.
A universal misunderstandingwhich employers hold is that if they do not have any women employees, they donot have to form a committee or conform with the other legal provisions. It is significantto note that the legislation affords defence to 'aggrieved women' who have theright to file a complaint with the committee and the definition of 'aggrievedwomen' covers a woman who may not be an employee. Take a case where a woman employee pays a visit ata client's office on official business and suffers sexual harassment in theclient office by an employee of that client, the woman would have grounds tofile a complaint with her employer's committee. The woman's visit is during thecourse of her employment, so the client's office is also referred as a place ofwork. At the same time, as an aggrieved woman, she would also have grounds toapproach the committee of the client organisation.
Employer Needs To AbideTo The Decision
Post conducting aninquiry, 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 therecommendations.
It is not comprehensibleif the employer can go away from the committee's advice, or whether they are obligedand must be complied with in letter and spirit. For example, the committeecould advocate moving the complainant or the perpetrator, but the employer maynot consider that to be practical from a business standpoint.
Employers are also accountablefor offering help to the aggrieved woman if she chooses to file a policecomplaint. So, it becomes the responsibility of the employer to notify theaggrieved woman of her rights to file a police complaint.
Further, thelegislation provides that employers should make the first move against theperson responsible for the act under the Indian Penal Code or any other law inforce but it appears that this is not essential in every case. However, wherethe alleged act of sexual harassment is of a serious nature, the employer orthe committee may have to apply their duties very vigilantly and it may be essentialto raise a police complaint.
Annual Report To Be Submitted To Both The Employer And The LocalDistrict Officer
The committee must organizean annual report for each calendar year, setting out the agreed details and thereport must be submitted to both the employer and the local District Officer.
If no DistrictOfficer has been selected, the committee reports should be sent to theDepartment of Women and Child Development of each state.
Apart from raisingawareness, the Government is looking at making possible the implementation ofthe legislation by taking measures to assign District Officers and introducingguidelines to clarify the issues not covered in the legislation which wouldhelp employers obey the legislation.
The legislation inflictsthe penalty of a fine and in cases of recurring offence, employers may alsohave their business licences or registrations (issued by the Government authorities)annulled. Given that the law imposes a rigorous penalty for violation, it willbe indispensable for employers to make sure compliance.