This article is written by Pallavi Pareek and Amartya Bag, on the duties employers must comply under the sexual harassment of women at workplace act, 2013.
Compliant or 100 % Compliant? Duties of employers do not end with constituting an ICC – Here is a list of 8 duties that the employers must comply under the new sexual harassment law
It has been more than a year since the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Sexual Harassment Prevention Act). Do not confuse this with the Vishakha Guidelines – which were purely a temporary solution in the form of guidelines issued by the Supreme Court while a more concrete and holistic law such as the anti-sexual harassment act of 2013 was enacted. It is important to note that the new act contains many provisions which are quite different from the requirements under the Vishakha guidelines. However, for most of the organisations that we have worked or interacted with, we realized that the news of the new law has not reached them yet. While it was disturbing to see that majority of the organizations have not taken any step towards adhering to either of the guidelines, there were some selected organization that were happily adhering to the Vishakha guidelines. We also came across very few organizations who are aware and were struggling with complying with the new law – they have Internal Complaints Committee (ICC), anti-sexual harassment policy, notices in workplaces and one or two sessions for the employees. However, here are few questions:
Are these elements enough to solve the issue of making a workplace safe? NO.
Do these elements provide a sturdy internal mechanism to prevent and handle sexual harassment at workplace? NO.
Does it make an organization compliant in the eyes of the law? NO.
Duties of employers do not end with constituting an ICC or having a sexual harassment policy – the act imposes more than 10 obligations on employers to ensure that working women do not face sexual harassment at the workplace. Non-compliance with the provisions may result in penalties being imposed on the organisations, which may include fines and cancellation of the business licenses.
Let us make a quick check whether your organization is 100% compliant under the new sexual harassment prevention law.
I. Have you created an Internal Complaints Committee (ICC) in all offices / branches of the organization to which the act applies?
While most organisations will create an internal complaints committee, a very few of the organisations are aware of the fact that they must constitute an ‘Internal Complaints Committee’ (“ICC”) at each office or branch that employs at least 10 employees. Do you know, the law requires all organizations having 10 or more employees, even if they do not have women employees to constitute an ICC? This compliance is important because the law allows even third parties like contractors, customers and anyone who is visiting the premises of an organization to file a complaint of sexual harassment that took place with the workplace.
II. Is your organization’s anti-sexual harassment policy aligned with the provisions of the new law such as definition clauses, procedural mechanisms, interim remedies?
We know you must already have a anti-sexual harassment policy in your organization. But, in a number of companies that we have worked with, it is found that the organizations are blindly “copy-pasting” the policies adopted by some foreign organizations or copying from each other. Although, the basic principles of anti-sexual harassment law remain the same throughout the world, and there is no harm in considering the best practices of the industry globally. However, mere copy-pasting the provisions without giving much thought about the ramifications of the text in context of the operating sector of the business or cross-checking if they actually meet all the required standards under the 2013 Act might be counter effective and will not be able to meet the purpose. For example, the new law in India, considers transportation provided by the office to be part of the workplace and any incident of sexual harassment that happened in the transport will be treated in the same manner as if it happened in the office premises. It is important that the policy is drafted in accordance with the provisions of the new Act and clearly incorporates such provisions as laid down under the law.
III. Have you made changes to the employment contracts to make the employees legally bound for the acts of sexual harassment in the workplace?
Just having a sexual harassment policy in place is not enough under the law – the Anti-Sexual Harassment Act requires the employer to treat any instances of sexual harassment as misconduct under the rules of employment. Therefore, the service rules, standing orders or the employment contract, as the case may be, should clearly state that sexual harassment will be treated as a form of misconduct. Ideally, organisations should insert a specific clause in the employment agreement for all new hires stating that sexual harassment will be considered as misconduct. In case of existing employees, the organization can ask the employees to sign on the amended service rules and share a copy of the sexual harassment policy and submit the same with the HR. Consequences for misconduct should be specified – apart from deduction of wages or other measure such as termination of employment, these could also include other measures specified in the Employment Rules, such as termination of employment or transfer to another location.
IV. Do you organize workshops and awareness programmes periodically for, a) sensitizing employees on implications of sexual harassment at the workplace and b) organizing orientation programmes for members of the Internal Complaints Committee?
Under the Sexual Harassment Act, employers have a responsibility to sensitize employees regarding sexual harassment issues by organizing workshops and seminars. The Central Government rules under the Sexual Harassment Act require the employer to engage in the following:
- i) Dissemination of the policy against sexual harassment.
- ii) Carrying out orientation programs for the members of ICC.
iii) Conducting capacity and skill-building programs for the members of ICC.
- iv) Conducting awareness programs and dialogue forums involving members from women’s group, mother’s committee, Panchayati raj institutions, urban local bodies and other appropriate bodies.
- v) Publish names and contact details of the members of ICC for easy access by employees and others working in the organization
- vi) Use modules developed by State Governments for conducting awareness programmes for employees regarding the provision of the law.
Employers may consider inviting legal practitioners who have worked on women’s rights issues, representatives of NGOs, organizations working on the issues of women’s rights or human rights for such orientation and sensitization programs.
V. Do you display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee?
During our visits to offices of some of the well know organisations, to our surprise found out that they have not adequately displayed notices as required under the law and in some cases they have not displayed any notices at the workplace. To create awareness and continuous sensitisation for the employees, it is essential that the organization put up notices in conspicuous places in the workplace about the penal consequences of indulging in sexual harassment, and also about the composition and contact information of the members of the ICC. This can be done through fixing attractive posters around the offices and especially at places where the employees will obviously read the posters, for examples, near cafeteria, water cooler, coffee machines, washrooms, photocopier machines, etc.
VI. Do you submit necessary information pertaining to sexual harassment to specified authorities?
We had approached organizations for data related to sexual harassment in their organisations, but most of them politely stated that these are confidential information and cannot be disclosed. However, when we pointed out certain provisions of the Sexual Harassment Act which prescribes several filing and reporting requirements for employers, they were unaware about them.
- Preparation of annual reports-
Proprietorships, firms and LLPs – For employers who are not required to prepare an annual report, g. sole proprietorship businesses, partnership firms and LLPs, the employer is required to inform the District Officer appointed under the Sexual Harassment Act about the number of cases filed under this act with his organization and their disposal status.
Companies, societies and trusts: Certain businesses are required to file an annual report with a government body – for example, companies must file their annual reports with the Registrar of Companies. Similarly, public trusts and societies (most NGOs are structured as societies or public trusts) are also required to file such reports with the Charity Commissioner or the Registrar of Societies. In such cases (where annual reports are to be filed), information about sexual harassment must be included in the annual report.
2. Report implementation of interim measures to the ICC or the Local Complaints Committee (LCC)
How will the ICC or the LCC know that an interim measure has been implemented by the employer? For this purpose, whenever the committee awards an interim measure, the employer is required to send a report to the committee on the implementation of the interim measure.
- Monitor submission of reports by the ICC
The ICC is required to submit a number of reports pertaining to its activities (which need to be submitted at the end of each calendar year, ie, after 31st December) or forward copies of settlements under the Sexual Harassment Act. The employer is required to ensure that these actions taken by the ICC on a timely basis.
VII. Do you help your employee to initiate legal action against the perpetrator for sexual harassment (if the perpetrator is not an employee) under criminal law?
There can be many situations where it can be said that sexual harassment has occurred at the ‘workplace’, but where the person involved in the harassment is not under control of the employer – thus, the employer has extremely limited ability to assist the woman through the ICC mechanism. But, that does not absolve the liability of the organisations, in such cases, if the woman requests, the employer is obligated under the law to provide adequate assistance to her in approaching the police and filing an FIR.
VIII. Do you provide necessary facilities to the complaints committee for dealing with sexual harassment instances?
The ICC will require facilitation and assistance from the employer’s end to carry out inquiries. Facilitation necessary from the employer’s end could include:
- Provision of a venue where ICC proceedings can be carried out in a confidential manner.
- Providing necessary logistical support in terms of furniture and stationery
- Ensuring that committee members (if they operate from the employer’s premises) have access to secure communication (internet, phone connections, postal services) so that inquiry and hearings can be smoothly carried out.
- Providing access to company policies and manuals, any basic legal literature which is possessed by the employer, etc.
- The employer must assist the ICC in securing the attendance of the person alleged to be the perpetrator and any witnesses before the ICC or the Local Committee – for example, he could arrange for transport in appropriate cases.
Consequences of failure to comply with obligations
Non-compliance with the provision to constitute an ICC has significant consequences – an employer who fails to constitute an ICC as per the Sexual Harassment Act will be liable for a monetary penalty of up to INR 50,000 if a complaint is made to the magistrate.
Any woman who has faced sexual harassment at the workplace, or any person authorized by the Internal or Local Complaints Committee can file a complaint with the Magistrate.
Repeated non-compliance of this provision can result in the punishment being doubled or even cancellation of the license by the government or local authority to carry on business.
Similarly, failure to implement the recommendations of the ICC or the Local Committee, or failure to include appropriate details pertaining to filing and disposal of sexual harassment cases carries the same penalty.
Are you compliant with the new sexual harassment law? If you have not complied with the law and looking for an effective, accessible and super-fast way to comply with law, visit http://sexualharassment.nujs.edu/ to find out more about a course which is develped by National University of Juridical Sciences, Kolkata (One of the top 3 NLU) and vetted by leading sexual harassment law experts, that helps in organizational compliance, ICC capacity-building and employee sensitization for 100 percent of the organization. You can also check out this course which gives you great insights on how to implement sexual harassment laws.
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