Is Vishaka-compliance equal to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 compliance?
Is Vishaka compliance legally sufficient under the 2013 Act?
In 1997, the Supreme Court of India had laid down guidelines for organizations to prevent sexual harassment at the workplace in the ‘Vishaka’ case – while majority organizations did not implement the guidelines (including various government organizations), several forward-looking companies, subsidiaries of multinational corporations and select public sector undertakings complied.
Naturally, when the 2013 Act was notified, it was an opportunity for them to congratulate themselves – it seemed that their efforts had been validated, and others would now have to take efforts to create better workplaces. However, these organizations did not have to do anything more under the new Act (as they were already Vishaka compliant). Or did they?
The first response to any discussion about sexual harassment prevention law compliance is – if the entity is compliant with Vishaka, what is the need to worry? If there is already an anti-sexual harassment policy or a grievance officer in place, is anything else required? Can’t the Chartered Accountant, Company Secretary or the compliance officer manage the rest?
Well, the story begins here – 2013 Act introduces a sea change in the law, and all entities have much more work to do to comply. This responsibility of organizational compliance is naturally entrusted on HR managers, training departments, compliance officers, accountants, secretaries and in-house lawyers.
Interestingly, sexual harassment prevention law compliance requires legal, adjudicative, training, inter-personal and compliance skills, which makes the job relatively more complex a working professional, without specific training and guidance (or additional tools).
Why are these skillsets necessary? What are the additional responsibilities of an organization under the 2013 Act? We thought of not being too general or vague, and listed down the differences between the Viskaka guidelines and the Sexual Harassment Prevention Act, 2013. That will help you evaluate whether additional efforts need to be taken to comply with the new law.
|Vishaka v. State of Rajasthan
(JT 1997 (7) SC 384)
|Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
What kinds of organizations are covered?
|The guidelines expressly cover only government, public sector and private enterprises.
There is no clarity on whether employees working in NGOs, sports complex, stadiums are covered, where there may be no strict employee-employer relationship.
|The Act expressly covers almost all types of organizations, including NGOs, hospitals, sports institute, complex or stadiums.|
In what occupational positions and roles are women protected?
|The Vishaka definition of employee covers any working woman, whether she is drawing a salary or an honorarium or working voluntarily. It was not clear whether trainees and interns were covered.||Definition of ’employee’ under the 2013 Act is wider in scope and expressly specifies that temporary or contract employees, interns and trainees are protected and have the right to approach a complaints committee. Similarly, contract labour and unorganized sector employees are also covered.|
|What is the scope of workplace||The Vishaka judgment did not elaborate on what constitutes ‘workplace’, except for a general statement that government, public and private enterprises are all covered.||‘Workplace’ is defined in detail under the 2013 Act – any place visited by the employee in course of employment (including transportation provided by the employer) is also included within its definition. The expanded concept of workplace makes application of the rules tricky in situations where employees collaborate on off-site work, use shared transport or travel out of station.
|Obligations of employers||Apart from establishment of a grievance redressal mechanism, organizations did not have significant obligations. Employee training and sensitization obligations were extremely preliminary.||The Act lays down multiple obligations on organizations must comply with and violation of any of them has serious consequences.
It also includes the responsibility to sensitize employees, create complaints committees which are in compliance with the law, train members of complaints committees, put up notices and file annual reports.
|Organizations had significant flexibility on how they could create mechanisms to address sexual harassment – they could create any grievance mechanism such as an ombudsperson or a committee as per their needs, without complying with any technical requirements.||For grievance redressal, a complaints committee must be constituted as per the Act, which must necessarily have an external member with appropriate skills and requisite number of women members.|
The guidelines did not lay down detailed inquiry process, and merely stated that it must be time-bound. Employers had freedom to determine broad timelines on their own.
|The Act prescribes detailed guidelines for conducting the inquiry process – there is an overall timeline for completion of inquiry in 90 days and time limits for each stage of the filing and the investigation.|
|Remedies for harassment||‘Appropriate disciplinary action’ was the prescribed punishment against a perpetrator found guilty of sexual harassment. Compensation was not specifically provided for.||Several remedies are provided under the 2013 Act. Disciplinary action, withholding of promotions and salary increases, awarding of compensation is expressly permitted. Complaints committees may provide interim relief such as transfer of the complainant or accused pending their decision on a complaint.|
|Powers of committees||Complaints Committees were not granted any special powers under the law (apart from disciplinary action).||For the purpose of enforcing attendance of accused and witnesses and collection of documentary evidence, Complaints Committees have the powers of a Civil Court. They can also provide the option of settlement to parties based if certain conditions are fulfilled. This is a technical obligation and difficult to implement without guidance or a tool.
|Appeal||There was no process of filing an appeal from the decision of the Complaints Committee.||One can file an appeal as per Service Rules or to the Authority Appointed under the Industrial Employment (Standing Orders) Act – it is in the committee’s and organization’s interest to ensure that their orders stand basic legal scrutiny at least.|
|Settlement Mechanism||There is no settlement mechanism under the guideline.||The Act allows settlement of the complaint through conciliation facilitated by the Complaints Committee.|
|Consequences of non-compliance||No specific punishment or penalty was mentioned under Vishaka guidelines for non-compliance.||The Act imposes a punishment of fine up to INR 50,000 for non-compliance with the law. For any subsequent conviction, the employer may have to pay double the fine amount and also be liable for cancellation of business license.|
To sum it up, obligations under the new law are quite extensive – additional training, tools and skillsets are required to enable organizations to implement the new law.
What are the costs of non-compliance? Well, INR 50,000 fine, which gets doubled in case of repeated non-compliance, and risks of shutting down of the business. Moreover, reputational risks are very serious (recall the Tehelka fiasco case study). Risks from employee litigation can be serious – in 2011, Novasoft Technologies had to pay INR 1.7 crores to a senior-level employee who was sexually harassed. On 18th September, 2014, Union Minister Maneka Gandhi stated that legal action will be taken against non-compliant organizations.
The overall consequences of non-compliance are probably not worth the risk, if we told you that compliance need not be that difficult.
Click here to find out how organizations can effectively sensitize all employees through this course.
Increasing regulation of workplace environment is opening up new career opportunities for professionals (lawyers, company secretaries, chartered accountants) or those working in HR, training, compliance and legal teams, whose help is required not only to comply with sexual harassment laws but also in creating conducive workplace environments which are gender-neutral and free from discrimination and harassment. There is significant scope to build an independent employment and HR advisory practice for consultants. Click here to find out how the National University of Juridical Sciences, Kolkata, a top law university in India is collaborating with industry experts to help professionals in developing essential workplace-diversity related skillsets.