Employer’s Responsibility to Prevent Sexual Harassment at workplace

As an Employer are YOU doing enough to keep workplace safe?

Actually NOT!

We know that the business and legal implications are HUGE!

Interestingly the finding reveals that the senior management at many organizations are unwilling to accept the possibility of occurrence of such instances within their organizations.

A recent report of anti-sexual harassment advisory Complykaro.com revealed that over the total number of sexual harassment complaints at workplaces climbed by 27% in the financial year ending March 2022 compared to the 2021. This report has been generated based on company Annual Reports. The analysis has considered only companies in the BSE 100 index which account for over 65 percent of total market capitalisation of listed firms in India.

Study has revealed that over 31% of companies in India were not compliant to the regulatory norms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Even those companies that had a policy in place to comply with the law did not necessarily do everything required. A staggering 40% of the responding companies had not trained their Internal Complaints Committee on reconciliation and counseling techniques!

What are the employer’s accountabilities as per law?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) was notified on 9th December, 2013. However, even after more than a year of coming into force, it appears from surveys and comments from the Ministry of Women and Child Development in various newspaper reports, that many organizations have still not constituted an internal complaints committee (“ICC”) in their organization, in compliance with the Act (even though the fact is that organizations should have constituted a committee for tackling sexual harassment way back in 1997 when the Vishaka judgment was passed, instead of waiting for the Act to come in force).

According to the Act, an employer is accountable for:

• Instituting a robust company Policy to ensure the prevention of sexual harassment
• Constituting an Internal Complaints Committee (ICC) with a representation from an external consultant with a robust grievance redressal mechanism. This applies to any organization with more than 10 employees. Organizations present at different locations need to have ICCs at each of those locations.
• Conducting awareness sessions at periodic intervals to employees and ICC members
• Displaying prominently at conspicuous places across the work location, contact details of ICC members and the penalties if one transgress the law
• Following the complaints and reporting procedures if and when there is a grievance

Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

Ramification

According to the Act, if an employer fails to constitute an ICC within his organization, such employer can be punished with fine of Rs. 50,000. In case of subsequent conviction for failing to constitute ICC, penalty can be doubled and in certain cases the Act also provides that repeat convictions can lead to the cancellation of a company’s license.

However, courts have imposes higher penalties too in the past:

Company to pay Rs. 1.68 crore as damages for sexual harassment – Madras HC

One such case (Ms.G vs. Isg Novasoft Technologies) has been reported by the Economic Times on 11th April, 2015 where the Madras High Court directed the company to pay Rs 1.68 crore as damages for sexual harassment to an aggrieved woman. It reported that the court said in its order that if the company had set up a committee to inquire into allegations of sexual harassment, the litigation may have been avoided.

Link to the case law:?https://indiankanoon.org/doc/29530984/

Of course, needless to say, there is also a huge bearing on the brand of an organization as also the workforce confidence. Can we afford to be laid-back about it in this dynamic and competitive landscape? Are we being fair to our fellow workers?

The way forward

• We urge you to think for a moment and ask yourself if you are doing enough?
• Do you have a robust policy in place?
• If you do, do you have one just for the sake of compliance or have you pledged to ensure that work environment in your organization is safe?
• Do you have an ICC constituted as per the provision of Posh ACT ?
• If your ICC members are trained and Do you organize workshops and awareness programs at regular intervals for sensitizing the employees?
• Have you set up a complaint mechanism?
• Are you following the complaint procedure?