Are details of sexual harassment proceedings required to be kept confidential?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states that the following details must not be known to the public, press or media in any manner:
- Identity, name and address of the aggrieved woman, respondent and witnesses
- Information pertaining to conciliation and inquiry proceedings
- Recommendations of ICC (or LCC)
- Action taken by the employer (or the district officer)
Note that it is not just the complainant’s identity, but also that of the accused which is protected.
Under the law, disclosing name, address, identity or any other particular that lead to the identification of the aggrieved woman and witnesses is prohibited. However, information about the ‘justice’ secured to the aggrieved woman is permitted to be released to such entities. (See Section 16 of the Act.)
Note that from a plain reading, it seems that this requirement of confidentiality kicks in after a complaint has been filed. In a real scenario, there may be intermediate steps before the complaint is filed, such as approaching HR, a grievance officer or ombudsman, or a counselling officer. Is confidentiality available at this stage? This is not clear under the act, and will depend on the interpretation taken by a court. Not ensuring confidentiality at this stage can have reputational implications. What will happen if the victim files a complaint later on? There is a legal risk involved.
How can confidentiality be ensured before the complaint is filed?
It is safest if the organization’s anti-sexual harassment policy contains pointers on this. There could even be guidelines for employees which ensure that those who hear about incidents from colleagues who are friends do not share this information in any adverse manner, even unintentionally.
Disclosure within the organization
The act prohibits disclosure to the public, media and press, but does not specify the permissibility of disclosure of such information within the organization. Which persons and officers within the organization are permitted to know about such incidents? Should proceedings be kept confidential from colleagues or unrelated members of the senior management team?
The answer lies in whether there are certain categories of people who will necessarily need to know about the complaint. For example, the ICC members, HR or the compliance team. It is nearly impossible for these persons to not know about a complaint.
It also depends on whether disclosure to such persons will constitute disclosure to ‘public’. Unrestricted flow of information even within the organization has the risk that this information will increase chances of information leak to the broader public, which is prohibited.
Hence, it is optimal to keep flow of information restricted even within the organization. Ideally, it should only be disclosed on a need-to-know basis. For this, a corresponding obligation of confidentiality should be imposed on every individual with whom the information is shared. Consequences for breach of confidentiality may be specified under the policy.
Consequences of breach of the policy
What are the consequences of breach of confidentiality? The Act states that consequences for breach of confidentiality may be prescribed either in the service rules (applicable for the organization) or as prescribed by the government through rules.
Service rules are clearly applicable to those who work in government organizations, but what about the private sector? In certain industries, ‘Standing Orders’ are applicable, which may be included within the ambit of service rules. However, it is possible that standing orders do not contain provisions pertinent to these matters. Also, what about organizations to which standing orders don’t apply? Do employment policies or anti-sexual harassment policies qualify as service rules?
The answer to this is not clear, but in case the employer doesn’t specify consequences under the anti-sexual harassment policy or assuming that an anti-sexual harassment policy is not included within service rules, a penalty of INR 5,000 (five thousand only) is applicable, which can be recovered by the employer.
The penalty does not seem to be strict. What if the employer is responsible for the breach? What if a key management team member is responsible for the breach? Would the employer be in a position to recover that amount realistically?
While the penalty is not strict, employment policies usually contain statements or assurances to employees, assuring them of a work environment which is friendly or non-discriminatory or not hostile. Employees may be able to proceed contractually against the organization invoking these rights if confidentiality is breached. Arbitration may also be invoked in cases where the employment contract contains an arbitration clause.
Systems and mechanisms to ensure confidentiality
Irrespective of legal risks, there are serious reputational implications for breach of confidentiality, and this discussion will now proceed further on the basis of this assumption.
How can one ensure that the legal right of confidentiality is guaranteed at a practical level? How does it permeate through the organization? There are three facets of this:
- Anti-sexual harassment policy – The anti-sexual harassment policy of the organization needs to clearly state what form of confidentiality protection is available. It must provide examples that explain different situations where confidentiality is / is not available. Consequences of breach of confidentiality and whom to complain to in the event of its breach must be explained.
- Training programs for employees – Training programs for employees need to clearly explain the degree of confidentiality protection and the situations in which confidentiality is available, so that employees understand the organizational stance and the contents of the policy.
- ICC and management trainings – The complaints committee needs to be clearly educated about systems and processes that need to be adopted to preserve confidentiality, how to ensure information about proceedings and complaints cannot be stolen, circumstances when disclosure to somebody can be made, the amount of information that can be disclosed under such circumstances and conditions to be imposed on a person to whom information is closed.
Officers and key personnel who need to take initiative in this process
This work cannot does not come solely within the job description of a single category of persons, but requires the involvement of human resources, legal and compliance team, training department, public relations and corporate communications team.
It is quite interesting how a simple legal protection of confidentiality has so many ramifications when applied at the ground level. Significant expertise is also required to be developed for effective implementation. Over 2 million organizations need to comply with the law, which implies that more than 10,000 experts need this training. In fact, this realization had led the National University of Juridical Sciences, Kolkata to start an online executive certificate course for HR managers and compliance professionals.
Did you find this useful? Do you have questions around sexual harassment law implementation? Do you want to acquire skills which can help you in implementing the law for your organization or other entities? Let us know by commenting below.
(Abhyudaya Agarwal is a founder of iPleaders, the legal education startup which has helped NUJS in capturing industry and implementation insights around sexual harassment prevention laws from practitioners. You can find out more about this initiative here).