In this article, Varun Anand pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses Liability of directors in case of sexual harassment non-compliances.
INTRODUCTION
According to a study, a woman endures an incident of sexual harassment in India every 42 minutes, this sums up to about 34 incidents in a day or 240 incidents in a week or 1028 incidents in a month. This is an alarming number to deal with and most of these incidents go unreported due to a deficiency in the legal structure of the country.
Post the landmark judgement in a Public Interest Litigation[1] filed by a women’s activist group in the Supreme Court of India the Hon’ble Court promulgated a set of guidelines, namely the Vishakha Guidelines. These guidelines were in force till the time the legislature came up with a more comprehensive and robust set of laws to cover the sexual harassment complaints of women at the workplace. In 2013 the Legislature came up with a new set of laws, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. These laws come with their own set of guidelines that any workplace or industry is supposed to comply with.
Before getting into the nitty-gritties of the new Act it is more important to understand what constitutes sexual harassment.
WHAT IS SEXUAL HARASSMENT?
A quick type into google throws up the following search result, “harassment (typically of a woman) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks.”[2]
A perusal of the ‘Law Dictionary’ give us the following definition, “Harassment in the workplace or discrimination where unwelcome and unwanted advances are made to a person by one or more other employees. The comments are of a personal nature and often sexual in style and manner”[3].
The Equal Employment Opportunity Commission (EEOC)[4] of the United States of America defines sexual harassment as-
Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
- Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
VISHAKHA GUIDELINES
The Supreme Court of India in the case of Vishakha versus State of Rajasthan in 1997 had perceived the lack of any proviso in the IPC and gave a historic judgement whereby it gave certain rules which were to be followed by both public and private division associations to insure against and provide a proper forum for redressal of complaints to female workers from lewd behaviour or any such sexual harassment as they may face in their work place.
- The said rules made it compulsory for employers to shield their female employees from sexual harassment;
- if a legitimate complaint was bought forth by an employee alleging sexual harassment, then it was made mandatory for the employer to follow up on it;
- it was made compulsory that each organization must have a Complaint Committee headed by a lady to help manage such wrongdoings promptly;
- rules denying inappropriate behaviour ought to be told and broadcasted;
- Punishments are to be forced if there should be an occurrence of infringement of said standards.
These rules were the main arrangements or safeguards that were in place with regard to sexual harassment incidents at workplaces for almost 16 years and just in the year 2013, the Parliament of India established a particular Act to manage this sort of provocation of female employees by promulgating the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013
This act was passed on the 9th of December, 2013 in the light of the horrific Nirbhaya Case. The basic motive of this act is to strengthen the law of the country to protect the interest of a female employee at the work place. The act embodies almost all the directives as laid down in the ‘Vishakha guidelines’ by the Hon’ble Supreme Court of India. The Complaint Committees that are to be constituted under this Act are given the powers of a Civil Court in as far as collection of evidence is concerned. If an organisation is found to be in contravention of guidelines as under the new Act, then the employers are liable-
- for a fine which can go up to 50,000 INR
- for cancellation of business license if found to be a repeat offender
The directors and promoter of a company can also be prosecuted and either imprisoned or fined or both in case there is a gross negligence on their part to carry out the work a laid down in the Act.
Maids working in households, daily wage labourers at construction sites or hired labour also come under the purview of this Act.
If you are an employer or an HR you can learn more about sexual harassment prevention and policies and save yourself from any future conflict by taking up this course by National University of Juridical Sciences or just get to know more about the how to implement the POSH laws by taking up this course.
Though the act aims to bring all cases of sexual harassment under its ambit, it still lacks in the area of filing cases against the alleged accused. As per the Act all incidents of sexual harassment will be considered a civil wrong rather than categorizing them as criminal acts. A criminal proceeding can be initiated only when the person who has been wronged is willing to take criminal action. This flaw could lead to undue pressure being put on the victim by the employer so as to save the company from embarrassment and any police intervention.
LIABILITIES OF A DIRECTOR UNDER THE ACT
A director is the mind behind the company. A company is a legal person but it is still run by a specific individual or a set of individuals. The guidelines as laid down under this act are supposed to be implemented in every workplace down to the letter. If any director is found in contravention to this act then he is liable for prosecution and subsequent term of imprisonment or levy of fine or both.
Even after such implementation the companies weren’t complying with law. Following several complaints, the Ministry of Women and Child Development took appropriate steps and roped in the Ministry of Corporate Affairs to implement such rules which made it mandatory for every company to disclose details of Complaint Committees, which meant that all companies or rather the directors of the companies under section 134 of the Companies Act, 2013 were supposed to disclose all details of these committees including their composition and the work that they were doing in the Directors Report. Any non-compliance with in matters of section 134 attracts strict penalties and other consequences.
Also under Section 134 the directors are required to make sure that their company is in compliance with all the provisions of law that are currently in force in the country. For this the directors have to make sure that their company is running taking into account all these laws that are in force.
The Companies Act, 2013 has specific provisions in place for when directors are in contravention of its provisions. Any non-compliance in this behalf attracts a financial penalty of nearly fifty thousand rupees which can go up to twenty five lakhs or imprisonment or both. The term for imprisonment can be as long as three years. This penalty is in place to deter directors from behaving irresponsibly or in a manner detrimental to the company’s employees. The Companies Act also provides that if a director is imprisoned for a period of more than 9 months then he/she can’t stand for directorship for a period of 5 years. This is one safeguard in place that makes sure that the directors are in compliance. In light of these provisions the directors have also taken up the responsibility to properly constitute the Complaint Committees and playing their part in making sure that the female employees of the company have a safe environment to work in, an environment which is free of any sexual harassment.
CONCLUSION
Employers are required to organize workshops and awareness programmers at regular intervals for sensitizing the employees about the provision of this legislation and display notices regarding the constitution of Internal Committee and penal consequences of sexual harassment etc.
It is upon the of the Government (Central Government, State Government or Union Territory Administration) to monitor the implementation and smooth functioning of the Act and to maintain facts and figures on the number of cases filed and dismissed in respect of all cases of sexual harassment that are reported by an aggrieved female employee at the workplace.
It is the obligation of each employer to ensure that the work place of a female employee is free of sexual harassment for all and has a conducive working environment for better productivity. Each one of us has to work towards empowering female employees at the work place by making them aware of their basic rights about sexual harassment at their place of work in an organisation.
With an increase in the awareness amongst people about their rights against sexual harassment and people exercising this right, makes it of utmost importance the fact that the employer and to a certain extent, the employees understand the real meaning of sexual harassment. The employers and employees should be aware of the legal liabilities of the company, the directors and in some cases even the employees and they should take appropriate measures to prevent cases of sexual harassment. The employer should work towards creating an environment that is free of any gender discrimination and encourages employees, whether male or female, equally. The environment should be such that employees treat each other with utmost respect, professionalism and have a certain level of understanding towards everyone’s strengths and weaknesses. This would lead to a better and more conducive working environment which would allow employees to work with ease, increase productivity and above everything else ease the fear that a female employee faces of sexual harassment at the workplace.
[1]Vishakha and Ors. Vs State of Rajasthan
[2] ‘Sexual Harassment- Google’
