Thursday, June 13, 2013

Everything you want to know Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 and how to implement it

Hi,


In our country a specific law related to sexual harassment at workplace was awaited for a very long period. However, I feel considering the widened scope of work and harassment, a law related to sexual and other harassment protecting both men and women employee is need of the hour.



Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act , 2013 has got assent from The President of India and it has become an official Act now.  




The full act can be accessed from following link:






Before analysing the Act and other details, let us first understand in general aspect, what is sexual harassment and how it violates fundamental rights guaranteed by our constitution of India (and of course constitution of of most countries of the world)



As per the definition under section 2 (n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act , 2013, sexual harassment includes:





Even much before enacting of this Act, when I designed the policy for my organisation, we included following definition:


Sexual harassment would mean and include any  of the following:

i)        unwelcome sexual advances, requests or demand for sexual favours, either explicitly or implicitly, in return for employment, promotion, examination or evaluation of a person towards any company activity;

ii)       unwelcome sexual advances involving verbal, non-verbal, or physical conduct such as sexually coloured remarks, jokes, letters, phone calls, e-mail, gestures, showing of pornography, lurid stares, physical contact or molestation, stalking, sounds, display of pictures, signs, verbal or non-verbal communication which offends the individuals sensibilities and affect her/his performance;

iii)     eve teasing, innuendos and taunts, physical confinement against one’s will and likely to intrude upon one’s privacy;

iv)     act or conduct by a person in authority which creates the environment at workplace hostile or intimidating to a person belonging to the other sex;

v)      conduct  of  such  an  act  at  work  place  or  outside  in  relation  to  an

Employee of SME, , or vice versa during the course of employment; and
vi)     any unwelcome gesture by an employee having sexual overtones



If you see above definition, it provides much clarity than whatever mentioned in the government passed Act. 

Why such Act is need of the hour in our country
Sexual Harassment at workplace is a violation of women’s right to gender equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their economic empowerment and the goal of inclusive growth. Further, it is violation of fundamental rights of our constitution. Under article 14 and article 15 and 16 of the constitution of India, it emphasis in right to life and right to live life with dignity. Section 16 also emphasis on equal opportunity in public employment. Such discrimination take away these fundamental rights

14. Equality before law.—The State shall not deny to any person 
equality before the law or the equal protection of the laws within the territory of India. 
15. Prohibition of discrimination on grounds of religion, race, caste, 
sex or place of birth.—
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of 
birth or any of them, be subject to any disability, liability, restriction or 
condition with regard to— 
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of 
public resort maintained wholly or partly out of State funds or dedicated 
to the use of the general public. 
(3) Nothing in this article shall prevent the State from making any 
special provision for women and children. 
(4) Nothing in this article or in clause (2) of article 29 shall prevent the 
State from making any special provision for the advancement of any socially 
and educationally backward classes of citizens or for the Scheduled Castes and 
the Scheduled Tribes. 
 (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 
shall prevent the State from making any special provision, by law, for the 
advancement of any socially and educationally backward classes of citizens or 
for the Scheduled Castes or the Scheduled Tribes in so far as such special 
provisions relate to their admission to educational institutions including private 
educational institutions, whether aided or unaided by the State, other than the 
minority educational institutions referred to in clause (1) of article 30.
16. Equality of opportunity in matters of public employment.—(1) 
There shall be equality of opportunity for all citizens in matters relating to 
employment or appointment to any office under the State. 
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, 
place of birth, residence or any of them, be ineligible for, or discriminated against 
in respect of, any employment or office under the State. 
(3) Nothing in this article shall prevent Parliament from making any law 
prescribing, in regard to a class or classes of employment or appointment to an 
office under the Government of, or any local or other authority within, a State 
or Union territory, any requirement as to residence within that State or Union 
territory prior to such employment or appointment. 
(4) Nothing in this article shall prevent the State from making any 
provision for the reservation of appointments or posts in favour of any 
backward class of citizens which, in the opinion of the State, is not adequately 
represented in the services under the State. 
(4A) Nothing in this article shall prevent the State from making any 
provision for reservation in matters of promotion, with consequential seniority, 
to any class or classes of posts in the services under the State in favour of the 
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any 
unfilled vacancies of a year which are reserved for being filled up in that year 
in accordance with any provision for reservation made under clause (4) or 
clause (4A) as a separate class of vacancies to be filled up in any succeeding 
year or years and such class of vacancies shall not be considered together with 
the vacancies of the year in which they are being filled up for determining the 
ceiling of fifty per cent. reservation on total number of vacancies of that year. 
(5) Nothing in this article shall affect the operation of any law which 
provides that the incumbent of an office in connection with the affairs of any 
religious or denominational institution or any member of the governing body 
thereof shall be a person professing a particular religion or belonging to a 
particular denomination. 


Supreme court in the Vishaka and others V. State of Rajasthan and others (AIR 1997 SUPREME COURT 3011) had clearly laid down policy that every organisation should have mechanism to handle sexual harassment of women at workplace. 



You may download the entire judgment copy from




It was observed that

"Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty.’ It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Art. 19 (1)(g) to practice any profession or to carry out any occupation, trade
or business. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women. This class action under Art. 322 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right
to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights
of women workers under Arts. 14, 19 and 21 are brought before us for redress under Art 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum."


Thus the supreme court laid down the guideline and since then labour officers were asked to ensure that such policy exist in every organisation. I have designed such policy to 3 organisation and effectively ensure that it is followed.



However, it was not implemented in the entire nation completely. Finally government passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act , 2013 and also amended section 354 of Indian Penal Code




Section 354A of IPC :


 (1) A man committing any of the following acts 
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.



I strongly believe that government should have more elaborated it and gave clarity. Instead of covering just women, it should have covered both the genders.



Major points of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act , 2013 



1. It covers all women employee including household worker

(2) The definition of "aggrieved woman", is wider and covers all women  irrespective of age or employment status, both organised and unorganised sectors (companies, hotel, beedi kamgar, daily wagers, house maid, public or private and sector so nobody can escape from this. In totality, it covers all employer - employee relation even the contractual one. 


2. Wider than the Vishakha case: In Vishakha case, the coverage was typical office set up whereas in this Act the coverage is wider and in simple term if you have paid money for a simple work too, you are covered under this Act.



3. Composition of internal complaint committee (ICC), District Officer and Local Complaint Committee (LCC): An organised should have a permanent committee of 4 people. A senior woman from the organisation should be chairman of the committee. Out of this 4 people's committee at least one should be an external person from the organisation preferably from an NGO. The committee member having legal background preferred. For every such organisation having employee strength 10 or more, such committee is mandatory. Government will appoint a district officer and the district officer will constitute a Local Complaint Committee (LCC). Ideally, it is expected that the Labour inspector will be the district officer. For any organisation having employee strength less than 10, the ICC is not mandatory. In such cases, employee can file sexual harassment complaint to LCC. LCC will have 5 members (not important for HR fraternity to know)



4.Complaint filing and time Limit of filing complaint: Aggrieved woman can file a written (no verbal) complaint within 3 months from the date of incident to ICC and if ICC is not available then LCC if it happened only once. If it has happened again and again then within 3 months from the date of last incident. However note that if an employee is not able to give it in writing (whatever may be the reason, illiterate, disability anything), the presiding officer of ICC or LCC should assist the complainant. If due to circumstances, one cannot file within period of 3 months, the ICC or LCC may further extend the period for 3 years. However, the Act does not specify what are the circumstances. If aggrieved women is not able to file complaint due to her mental or physical capacity or death, her legal heir or such other person prescribed (basically relative) can file complaint on her behalf. Identity of the complainant, witness etc, are not allowed (strictly prohibited) to disclose to anybody. However, the final outcome can be shared without revealing the name. 



5. Time limit: The ICC or LCC must complete investigation within 90 days and take action within 60 days of completion of investigation. Hence, the matter cannot be kept hanging beyond 5 months. This is a good sign.



6. Settling matter without investigation: It is possible only if the aggrieved woman  request for the same. However settlement cannot happen over monetary compensation. I think this is one of the biggest flaws in this Act. Complainant cannot demand money legally but can settle it unofficially. (I am talking about few women, not all). Investigation should have been made a compulsory process not optional.



7. Separate rule for domestic worker: A domestic worker can file complaint to LCC and LCC can forward complaint to police. This is again another flaw, considering the police system which is believed to be almost 95% corrupt, who do not register an FIR (I self waited whole day to file FIR for a laptop stolen thats too intervention from a top official, and not clearing passport report like vital document without taking bribe). Now think about the poor domestic worker who are illiterate, scared from the word police. In fact, such sytstem will make police a middle man.



8. Compensation: The ICC or LCC can determine the compensation including monetary (please note, women cannot opt conciliation in lieu of money) on the basis of loss of career opportunity, hospitalisation cost, mental trauma, pain, agony, financial status of respondent and paying capability etc. Complainant can also seek leave or transfer on the basis of it.



Penalty for false complaint: If the complaint found to be false, then the complainant can be penalised. Please note that it has to be proved that the complaint is false. This means that if the allegation does not get prove, it does not mean that the complainant will be penalised.



Reports: The ICC and LCC has to send annual report as well as as any such complaint outcome to District Officer. This means more harassment from corrupt labour commissioner's office to HRD and company.



Process in a nutshell (for employees as well as Human Resources Department)



Employee (Complainant) feels Sexual Harassment at workplace (For definition see the Act and for broader definition, see it above)



File a complaints within 90 days to ICC/ LCC with all available evidence, list of witness




Complainant decide whether want to do conciliation (No monetary value involved) with the respondent or to go ahead for investigation



If reconciliation happens, the submit the report to ICC, then ICC submit to employer and employer submit it to The District Officer if not matter should go ahead for the investigation to the committee



Committee completes its investigation within further 90 days and handover the copy to both complainant and respondent.



It decides action within further 60 days



Implication on respondent if allegations proved

Has to may monetary compensation
May need to leave the job
May need police and judicial action for serious offences




What Human Resources Department should do

1. Without waiting further, first of all make a sexual harassment at workplace policy.
You may download the draft from following link:





This is the draft and you may modify it according to your own need however it should not violate anything mentioned in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act , 2013




2. The Act will come into the force with effective from the date it is notified in the official Gazzette (effect of the District Officer), as of now only Act has been passed and notified. However please note that the Supreme Court Directive is still in the force, so if you have not made any policy yet, make it right away without waiting.



3. Keep all the records of such incident. Make a code of conduct policy (if you do not have one) and during induction, orientation ask employee to read it and sign. Alongwith this, please send a reminder mail on every six months to all employee on their official email id.



4. Encourage transparency in your entire process. Encourage employee to freely speak.



5. Do a thorough background screening of job applicant before hiring including whether any previous cases of sexual harassment or harassment is pending against him/ her in previous organisation.



6. Take all complaint seriously, report it and process. Even if you do not have any such complaint, send the annual report to said District Officer as and when it comes to the force.



I hope this posting will be useful for you. All comments, questions and suggestions are welcome.








 






1 comment:

Thanks for your comment on blog.simplycareer.net. Please search for required information through tags, keywords on this blog as I have already added lot of required information. If you still do not find it, I'll revert you shortly.

Interested for our works and services?
Get more of our update !