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5 Years of India’s Anti-Sexual Harassment at Workplace Law – Key Takeaways

By: Sharanya Ranga

In the backdrop of the global #MeToo movement and the Harvey Weinstein sex scandal in the US, corporate India has also not been immune to sexual harassment related-firings. Sexual harassment at the workplace continues to remain an unfortunate reality for many women in India, across sectors, much like it is all over the world. April 2018 marks 5 years of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act”) and rules made therein coming into effect in India. The object of the Act, based on the guidelines laid down by the Supreme Court of India in the landmark case of Vishaka v. State of Rajasthan in 1997, is three-fold:

a. provide protection against sexual harassment of women at the workplace;

b. prevent sexual harassment at the workplace; and

c. provide the process for redressal of complaints of sexual harassment.

True to these objectives, the Act has a very wide scope covering both the organized sector and the unorganized sector, including all government, private and public sector organisations within its ambit. The term “workplace” includes not just the office premises but also places visited by the employees during/in the course of their employment including travel by company transport to the workplace. The term “employee” covers not just regular and temporary employees, but also the daily wage individuals, contract labourers, probationers, trainees and apprentices, including volunteers.

The Act imposes a duty upon the employers to provide a safe working environment at workplace and take affirmative steps for prevention, prohibition and resolution of sexual harassment complaints. Therefore, the employer has to frame an effective anti-sexual harassment policy, synergising the specific requirements of the organisation and the employer’s obligations under the Act. An Internal Committee (“IC”) has to be set up to deal with sexual harassment complaints as per the complaints redressal mechanism set out under the Act and reporting compliances to be complied with. Employee awareness sessions are a must to sensitize/educate the employees on sexual harassment. There are penalties prescribed under the Act for non-compliance, including cancellation of business license of the employer in case of repeated offence.

The essence of the welfare legislation, however, is in the framework under the Act for making a complaint, investigation process and redressal of the same by the IC that has to be adhered to by the employer. So the IC has to be constituted for each office/branch, employing 10 or more employees, its presiding officer has to be a senior female employee and at least 50% of the IC members must be women. One external member has to be appointed having legal knowledge related to the issues of sexual harassment or associated with a non-profit organisation. While corporate India especially multinational companies seem to have adopted the provisions of the Act for compliance purposes, with greater success than the unorganised sector, we take a look at some of the practical challenges faced in the implementation of the Act by the corporates.

1. Investigation Proceeding

While the Act sets out the broad framework for the investigation process to be followed by the IC when investigating into a sexual harassment complaint, there is lack of clarity on some pertinent aspects. For instance, the IC may be comprised of several members, but it is not clear if it is mandatory for all the members to attend all proceedings/meetings of the IC, specially the presiding officer and the external member. Given their role and other external commitments, these members may not always be available to attend all proceedings of an investigation. In this scenario, would virtual or limited involvement of certain members of the IC result in the entire investigation being declared invalid? There has been no judicial precedent too where such a scenario has been conclusively examined. Most organisations decide on these factors on a case to case basis depending on the facts and gravity of the matter. However, even when the IC’s decision is based on a thorough investigation in compliance with the Act (and sound reasoning), either of the parties may challenge it in a court of law on grounds of being in breach of the Act and thus invalid. Thus, simply vesting the IC with some of the powers of a civil court under the Code of Civil Procedure, 1908 for investigating a complaint without fleshing out the procedural aspects may not be enough.

2. Grievances against Outsiders

Sexual harassment of women employees at workplace by non-employees and third parties such as customers/clients, vendors and contractors is also a common place occurrence. The issue is rather pronounced in direct client facing jobs and sectors such as hospitality industry. Recognising this problem, the Act empowers employers to initiate criminal action under applicable laws against third party perpetrators, or if the aggrieved woman employee wishes to do so. However, given the lack of authority or direct control over such third parties, there is not much an organisation can do against them, except lodge a complaint with the appropriate authority, that too if the victim wishes to do so. Thus, there are some serious questions around the enforceability of this right as it appears to be a mere paper right lacking any real substantive powers. Also, where the perpetrators are customers or patrons, taking action against them might not be an acceptable proposition for many organisations due to the fear of bad publicity and loss of customer goodwill. There is also a possibility in this scenario that an organisation may even encourage the victim to not pursue the matter, as a criminal complaint is not required to be mandatorily filed by the employer, unless requested by the victim.

3. Investigation Challenges

Typically episodes of sexual harassment occur in a covert manner or in a private setting, with no eye witnesses to prove or disclaim the complaint. At times, the complainant may not even have direct evidence to corroborate her claim. Investigation in such situations can be tricky for the IC and it may even boil down to the complainant’s words against that of the respondent’s words. The IC in such a scenario may have to arrive at a decision based on an examination of motives for filing the complaint and corroborative or circumstantial evidences, if any. The standard of proof is not conclusive but circumstantial or corroborative in nature, which again may be difficult to prove in a court of law.

4. Recommendations of the IC

The Act empowers the IC to recommend appropriate punishments/penalties to the accused/respondent in the event of the investigation concluding that the accused/respondent is guilty of committing an act of sexual harassment. IC can make recommendations to take action against the respondent as per the applicable company policy and also direct specific deductions from the salary/wages of the respondent to compensate the complainant in applicable cases. Generally, corporate policies recommend disciplinary actions ranging from written apology to the complainant to dismissal of the respondent, depending on the nature and gravity of the act. Imposition of IC’s recommendation by the employer may be easier said than done, especially in cases of deduction of wages. At the outset, the very determination of compensation to be paid to the complainant itself can be complicated as the Act requires the IC to consider factors such as mental trauma, pain, suffering and emotional distress caused to the aggrieved woman; loss in the career opportunity due to the incident of sexual harassment; medical expenses incurred by the complainant for physical or psychiatric treatment; income and financial status of the respondent and so on.

As is apparent from the above, some of these factors are highly subjective and it may be difficult to establish a direct causal link between these factors and the alleged act of harassment to justify the compensation and then to decide on the quantum of the compensation where such link is established. Further, there are also practical implications and ambiguities while making the deductions, such as whether the deductions in salary should also result in a corresponding reduction in the employer’s contribution towards statutory retirement or superannuation benefits like provident fund/gratuity et al.

The Judicial Precedents

Being a relatively new law, there is no plethora of cases decided under the Act. There have been some noteworthy judgments passed by various high courts of the country, though not a single one has been examined by the Supreme Court till date. A quick look at the cases reveals that the high courts have overall upheld the process requirements of the Act and rapped the knuckles of employers for not following “due process” as per the Act, when it comes to composition of the IC, conducting the investigation, termination of employment post completion of investigation, etc. Essentially, courts have passed adverse orders where companies have circumvented the Act, not set up the IC or conducted the investigation in an improper/ad-hoc manner without following the principles of natural justice. Notably, the courts have tried to adopt a restrained approach of not interfering too much unless there has been non-compliance or if the punishment is shockingly disproportionate to the act of misconduct.

The Way Forward

The Act has definitely brought about a positive impact in creating awareness about the issue of sexual harassment and laying the framework for creating a safe and harassment free work environment for women in India. The focus needs to shift to the complete implementation of the Act, both in letter and spirit, across the country.

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