This article is written by Shivani Jain pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho.
Table of Contents
In laymen’s sense, harassment denotes a form of discrimination that comprises of any unwanted and unwelcome physical or verbal behaviour, which can easily offend or humiliate a person. These kinds of acts are characteristically identified through their unlikelihood in terms of moral and social reasonableness and are capable of disturbing both the mental and physical well-being of that person.
Further, in legal parlance, these are the behaviours that seem to be upsetting, threatening, or disturbing and are advanced from discriminatory grounds. Not only do these acts have the effect of impairing or nullifying an individual from taking benefit of his/her rights, but can be termed as bullying, if done in a repetitive manner. That means the concepts like the continuity of repetitiveness and an alarming, disturbing, or threatening nature, differentiate an act of harassment from astonishment or mere insult.
Common types of harassment
The common types of harassment are as follows:
- Mental harassment;
- Physical harassment;
- Discriminatory harassment;
- Sexual harassment;
- Harassment based on caste, race, gender or religion;
- Emotional or psychological harassment;
- Cyberbullying or online harassment.
In this article, we will deal with the notion relating to mental harassment at the workplace.
What can be termed as mental harassment?
The term Mental Harassment is nowhere defined under the Indian Laws. However, it shall be noted that the Division Bench of the Hon’ble Andhra Pradesh High court in L. Nagaraju vs. Syndicate Bank and Ors, went on to explain the term Mental Harassment and quoted the “Indian Journal of Community Medicine” (official publication of preventive and social medicine) in the article “A cross-sectional study in Coastal South India which defined “workplace harassment”, hence:
“Harassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person. Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another or which create an intimidating, hostile or offensive work environment.”
Further, the Division Bench of the Hon’ble Andhra Pradesh High court went on to add that, “Finally, we may thus state or define workplace harassment as follows: Workplace harassment is any type of unwelcome action towards an employee by the employer or anybody on his behalf that leads to difficulty in performing assigned tasks or causes the employee to feel he or she is working in a hostile environment. The harassment may be based on factors such as race, gender, culture, age, sexual orientation, or religious preference.”
In a general sense, to constitute an act as workplace harassment, several facets must be present. The facets that are required to be present in an act can be summarised as:
- First, the conduct needs to be unwelcome or unwanted and offensive to the employee;
- Second, the said employee must have raised his/ her voice as an objection to the behaviour;
- Third, the employee must allow the offending individual or individuals to revise their workplace behaviour;
- Lastly, the said conduct or the act committed must be of such a nature that draws an impact on the employee’s ability to carry out his/ her duties in an efficient, efficacious, and responsible manner.
Legal analysis of mental harassment at workplace
Some rights are both inalienable and undeniable from a human being and are guaranteed to them by birth. These rights are known as Human Rights. The term Human Rights is defined under the Human Rights Act 1993, which means the rights related to life, liberty, equality, and dignity of an individual.
Further, it shall be noted that in India, the concept of Human Rights is guaranteed by both the Constitution of India and various International Covenants. Therefore, the Right to Live with Dignity is a Human Right and any harassment will result in a breach of it.
Furthermore, the different legislations that deal with different forms of Harassment can be summarised as:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The said was the first legislation enacted specifically to protect women from workplace sexual harassment. The word sexual harassment is defined under the provisions of Section 2 of the Act. It gives an inclusive meaning by stating that sexual harassment consists of any one or more of the below mentioned unwelcome acts or behaviour:
- Physical contact and advances;
- A demand or request for any sexual favour;
- Making sexually coloured remarks;
- Showing pornography;
- Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
Further, the law mandates certain rules and practices which every workplace ought to follow to prevent sexual harassment. Also, there are mechanisms which are needed to be created by every organisation for redressal of complaints.
Indian Penal Code, 1860
It shall be relevant to state that the term “Mental Harassment” has not been explicitly defined anywhere under the Indian Penal Code 1860, however, the notion of harassment can be interpreted in terms of cruelty or torture. The relevant sections are as follows:
- Obscene Acts and Songs under Section 294;
- Assault or Criminal Force to Woman with an Intent to Outrage her Modesty under Section 354;
- Sexual Harassment and Punishment for Sexual Harassment under section 354A;
- Word, Gesture, or Act Intended to Insult the Modesty of a Woman under section 509;
Information Technology Act, 2000
The Information Technology Act 2000 aims to give legal recognition to all online transactions and also regulates various online acts and offences committed:
- Punishment for Publishing or Transmitting any Obscene Material in Electronic Form under section 67;
- Punishment for Publishing or Transmitting of any Material containing Sexually Explicit Act, etc, in an Electronic Form under section 67A;
Landmark judicial precedent for harassment at workplace
The landmark judgment for any Harassment is Vishaka & Ors. vs. State of Rajasthan, AIR 1997 SC 3011.
The said case is decided by the Hon’ble Supreme Court and operates as the landmark judgment in the matter relating to sexual harassment. The term Sexual Harassment means any uninvited/ unwanted act relating to sexual favour or gestures from one person or gender towards the other person or gender, which is capable of making that person feel offended, insulted, and humiliated, or even disturbs the mental peace.
Further, a significant part of society becomes the regular victim of sexual harassment in some or the other way. Therefore, the Hon’ble Supreme Court has observed that the fundamental rights provided under Article 14 , 19  (1) (g), and 21  of the Constitution of India clearly state that, every profession, trade, or occupation must provide a safe and secure working environment to its employees. Also, it shall be noted that the right to live with dignity is the basic requirement of every employee so there must be the availability of a safe and secure working environment at the workplace.
The Hon’ble Supreme Court further held that freedom from sexual harassment at the workplace is the fundamental right of every employee. In the same case, it also put forward several important guidelines for the employers to adhere them and avoid the cases of sexual harassment of women at the workplace.
Further, the court also suggested that it is mandatory to have proper techniques and mechanisms for the implementation and execution of cases, where there is sexual harassment at the workplace involved.
Furthermore, the main objective of the Supreme Court behind the passing of judgment was to ensure gender equality among people working in an organisation and also to confirm that there must be no discrimination towards women employees at their workplace.
Legislations applicable on private sector employees
Although the employment of an employee, working in a private sector, is solely based on the terms and conditions defined and signed by him/ her under the Employment Contract or Service Level Agreement. However, there are various Labour Laws that are applicable to the Private Sector as well. The labour legislation applicable are as follows:
- Payments of Bonus Act;
- Equal Remuneration Act;
- Payment of Gratuity Act;
- Employees Provident Fund & Miscellaneous Provisions Act;
- Employees State Insurance Act;
- Maternity Benefit Act.
Also, it shall be noted that every private sector is governed and regulated by the Shop and Establishment Act of that State. For example, any private company that is working for profit and is operating in any part of Uttar Pradesh, then, the same comes under the ambit of the UP Dookan and Vanijya Adhistan Adhiniyam 1962, or we can say the UP Shop and Establishment Act 1962.
Essential rights of private-sector employees
Here is a list of essential and basic rights provided under various legislations and regulations to an employee working in the private sector.
Detailed employment contract
In the Private Sector, an Employment Contract signed between the company and employee acts as the crucial basis for settlement, so the same must be comprehensive and detailed in nature. That means all the details such as the Compensation, Retirement, Place of Working, Resignation, Work Designation, Promotion, Transfer, Rights and Obligations, Non-disclosure of Confidential Information, Trade Secrets, Provident Fund, and Timely Payment. Also, it shall be noted that the said contract must also include a mechanism for effective dispute resolution.
6-months compulsory maternity benefit
The provisions of the Maternity Benefit Act 1961, provide benefits for both the prenatal and post-natal phase of a female employee working in an establishment.
It shall be noted that after the amendment in 2017, the duration of maternity leave for a pregnant female employee has been further increased to 26 weeks, from 12 weeks. The said leave also includes 8 weeks of postnatal paid leaves.
Further, if a female employee goes through complicated pregnancy, premature birth, delivery, or medical termination, then, in that case, he/she is entitled to 1 month of paid leave. Furthermore, in the case of the Tubectomy Procedure, the female employee will be eligible for further 2 weeks of additional paid leave.
However, if in case an employer violates the provisions of the maternity benefit law and the rules made thereunder, then, in that case, he/she is liable for punishment. The term violation denotes discharging or terminating a pregnant female employee for being absent because of pregnancy, delivery, or her post-natal illness. Conversely, an employer can revoke the Maternity Benefit, only in the case where a female employee has changed her job during the period of given benefit.
Payment of employee provident fund
In India, the employee provident fund is a retirement benefits scheme governed by the Employees Provident Fund and Miscellaneous Provisions Act and managed by a national level organisation named Employee Provident Fund Organisation.
The said scheme will be applicable to that organisation that employs more than 20 employees. Consequently, they need to apply for registration with EPFO.
An employer and employee need to deposit a total of 12% and 10% of the monthly basic salary in the Employee Provident Fund.
However, there are cases wherein an employer escapes himself or herself from paying Employees Provident Fund. The same is done by commencing a lot of shell companies and subsidiary companies on the names of different people, and distributing the appointed employees of the main company in them so that the count of 20 employees is not reached.
Also, if in case an employer does not pay his/her share or deducts the whole 12 % share from the employee’s salary only, then, in that case, he/she can be taken to the Provident Fund Appellate Tribunal for redressal.
Payment of gratuity
The labour legislation, Payment of Gratuity Act, 1972 confers a statutory right to an employee, who is working in an organisation for more than 5 years. It is again a retirement benefit, in which an employee is given a lump sum payment by the employer as a gesture of gratitude for his/her service. Further, the amount of gratuity payable will increase with the increment in the number of years of service.
However, on the other hand, if in case an employee is dismissed/terminated for proven lawless or disorderly conduct, then, his/ her statutory right stands forfeited.
On-time and fair salary
The main objective of providing services in any organisation, whether public or private, is to get fair and appropriate remuneration in return. Further, the legislation, such as the Payment of Wages Act, Equal Remuneration Act, and Article 39 (d) of the Constitution of India, mandates every employer to provide fair and timely salaries to his/ her employees.
However, if in case an employee is not receiving the remuneration as per the signed employment agreement, then, in that case, he/ she can approach the Labour Commissioner or can even file a civil suit for the arrears in salary.
Also, it is relevant to state that an employee cannot be given wages or salaries less than the legally prescribed minimum wages, as per labour law.
Appropriate working hours and overtime payment
The provisions of the Factories Act and the Shop and Establishment Acts (State-wise) govern the issues such as adequate working hours and overtime payment. The Shop and Establishment Act will be applicable to the Private Sector Employees and Factories Act will apply to Workmen.
Right to get leaves
Every employee who is providing services has the right to get paid public holidays and other annual leaves, such as casual leave, privilege leave, sick leave, and other leaves. Further, for every 240 working days, an employee is qualified to get 12 days as annual leave. Furthermore, in the case of a worker, an adult worker may get one earned leave every 20 days, whereas, the said tenure is reduced to 15 days for a young worker.
Moreover, during the notice period as well, an employee is eligible to take leaves for emergencies, provided that his/ her employment agreement does not bar the same.
Prevention of sexual harassment at the workplace
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 is the legislation that protects women from sexual harassment at the workplace. The provisions of the Indian Penal Code suggest punishment for sexual harassment, which is of up to three years imprisonment with or without a fine.
Moreover, it is mandatory for every organisation having more than 10 employees, to constitute an internal complaint committee for the aid and benefit of the victims of sexual harassment.
Also, the law mandates that a grievance redressal mechanism and policy must be in place in such organisations. The said policies must outline what all acts can constitute sexual harassment, redressal mechanism, penalties, etc.
The said committee must comprise a senior woman as a member, one non-governmental member, and two other employees as members.
Effects of mental harassment at the workplace on employees
The effects of mental harassment at the workplace on employees can be summarised as:
- Becoming less active or successful;
- Becoming less confident in their work;
- Develop the feeling of scare, stress, anxiety, hatred or depression;
- Getting their personal life affected, such as studies and relationships;
- Wanting to stay away or skip from work;
- Feeling like they cannot trust their manager;
- Detaching themselves from the people they work with;
- Losing confidence and happiness about their work and themselves;
- Suffering from physical signs of stress, such as headaches, backaches, and constant sleep problems.
Legal recourse to be followed
The question of legal recourse to be followed only depends on the type of mental harassment an employee is subjected to in his/ her office. Some of them are mentioned below.
Termination of work
If in case an employee has been wrongfully or baselessly terminated from his/ her services that, too, without any valid reason or appropriate ground, then, in that case, he/ she can approach the court and get an order of reinstatement, together with the permission to get wages from the backdate.
If in case an employee has been subjected to violence as a result of mental harassment or feels that his peace has been affected, then, he/ she must file a Complaint or register an FIR (First Information Report) and file a criminal case against the respective employer followed by sentencing.
Late wages or no wages
If in case an employer causes Mental Harassment in form of no wages, late wages, or even inadequate wages in comparison to others, then the employee can approach the Labour Court under the provisions of Industrial Disputes Act 1947 or the Payment of Wages Act, 1936.
Also, it should be noted that an employer cannot make any deduction in the salary without prior intimation to the employees.
Discrimination against a person with disability
Mental harassment is a huge umbrella term and even includes discrimination against people with disabilities. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 protects and safeguards people with disabilities from discrimination and racism.
Baseless discharge or termination of pregnant women
Nowadays, there are a lot of employers who prefer to terminate and discharge their pregnant female employees instead of providing them maternity leave and benefits. The main reason behind the same is to escape the liability of paying salary for that period when that pregnant woman is not working.
However, the Indian Labour Laws, specifically the Maternity Benefits Act 1961, supports pregnant women and empower them to file a civil case before the labour court against the unethical discharge or baseless dismissal on account of such absence.
Further, if an employer denies the maternity benefit to his female employee, then, in that case, the labour court can hold him liable for 3 months imprisonment, or a fine of Rs 5000, or both, based on the provisions of maternity leave in India.
Non-payment of overtime of hours
Based on the provisions of the Factories Act for Factories and Shop and Establishment Act (State-wise) for Private Organisations, if an employer is asking his/ her employees to work more than the hours prescribed in the Employment Agreement, then, in that case, he/ she requires to pay overtime salaries to an employee. Further, it shall be noted that an overtime salary is calculated as twice the salary for an hour. That means for every extra hour the employer needs to pay the double amount to the employee.
One of the most common forms of harassment is sexual harassment at the workplace, which is especially faced by female employees. Legal provisions such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 and Indian Penal Code, provide remedies to victims, punishments to the accused, and obligations on the organization to maintain a safe, healthy, and secured environment for the employees.
Documents required by an employee for sending legal notice and filing a civil suit
There are a lot of documents, mails, policies, based on the facts of the case that an employee must keep handy for his/ her future reference, but the primary documents that are required by an employee for sending legal notice and filing a civil suit against the employer are as follows:
- Employment Contract;
- Appointment Letter;
- Documents giving details about the Perks and Additional Benefits;
- Copy of Bank Statements regarding the Salary Paid.
Tips to maintain a healthy corporate environment
To make your organisation and office premise harassment-free, the management must ensure that the below-mentioned acts either do not occur or are reduced significantly at the workplace:
- Preferential treatment to one employee over others;
- Progress or efforts of an employee is unseen;
- Constantly questioning the decisions by employee;
- Targeting or micromanaging an employee;
- Termination threats by senior;
- Terminates an employee on raising voice against wrong;
- Socially alienating an employee;
- Discrimination based on disabilities;
- No guidance but unnecessary criticisms from seniors;
- Presented unreasonable obstacles;
- No motivation only deterrent;
- Non-approachable management;
- Weak grievance redressal mechanisms for employees;
- Delayed salary payments;
- Non-payment for overtime hours;
- Baseless discharge of pregnant female employee.
In a nutshell, every employer must divert their focus towards workplace bullying and mental harassment to employees, and implement stricter rules to curb it. Also, he/ she must take appropriate action against those people who commit such acts to their juniors. The reason behind this is that workplace bullying is a significant cause of mental and physical health problems suffered by an employee, especially females.
Further, there are various Indian legislations, together with human rights that safeguard and protect an employee against harassment of all sorts and mandate employers to maintain a healthy corporate environment for them.
Also, an employee can approach the appropriate court for sorting his/ her legal remedies against the employer, as suffering harassment just for the sake of not losing a job is not a solution to the problem.
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