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Responsibility of Corporates to Implement the law on Sexual Harassment. By Sunil Kumar Partner. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Object : To provide protection against sexual harassment of women employees at workplace
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Responsibility of Corporates to Implement the law on Sexual Harassment By Sunil Kumar Partner
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Object: • To provide protection against sexual harassment of women employees at workplace • Protect the constitutional Right to Equality of women • Prevention & Redressal of complaintspertaining to harassment
What constitutes sexual harassment and what the male/female employees should be aware of?
What is Sexual Harassment? S.2(n) Sexual harassment includes any • unwelcome - act or behavior • Includesphysical, verbal or non-verbal • conduct of sexual nature
Physical • “Physical contact and advances” of sexual nature • illustrative- excessive hugging, kissing, patting, touching a person’s clothing, hair or body, etc.
Verbal- not defined • “Demand or request for sexual favors” • “Sexually colored remarks” • Illustrative - whistling, sexual comments about a person’s body, spreading rumors about a person’s sex lifeetc.
Non-verbal – not defined • “Showing pornography” • Illustrative- elevator eyes, following the person, unwelcome facial expressions, etc.
Circumstances connected with acts or behaviour amounting to Sexual Harassment S. 3(2) • Promise of preferential treatment in employment • Threat of detrimental treatment in employment • Threat about present or future employment status • Interference with work • Creating an intimidating, offensive or hostile work environment • Humiliating treatment likely to affect health or safety
Key Definitions S.2 • Sexual Harassment - Unwelcome behaviour or act (2(n)) • Workplace - Private Sector Org. or any place visited during the course of employment (2(o)) • Employee - Person hired on permanent, temporary, adhocor voluntary basis. (2(f)) • Employer - Person responsible for management, control and supervision of workplace (2(g))
Internal Complaints Committee (ICC) - Instituted at workplace for redressal of harassment complaints • Local Complaints Committee - Instituted at district level for redressal of harassment complaints by the District Officer • District Officer - District magistrate who discharges functions under this act
Basic Rights and Privileges of Women at Workplace • Understanding the nature of conduct amounting to sexual harassment • Right to a safe working environment • Right against sexual harassment at the workplace (S.3(1)) • Right to make a complaint (S.9) • Right to redressal of grievance (S.9) • Right to compensation for emotional and physical suffering (S.15)
Duties (S.19) • Provide a safe working place – make employees aware of the law • Organize awareness programmesfor employees, sensitizing them with the provisions of the Act • Cooperate and assist aggrieved woman in filing the complaint • Provide assistance to file a police complaint
Duties • Constitute ICC • Display in the order constituting the ICC, the penal consequences of acts of sexual harassment • Treat sexual harassment as misconduct under the service rules and initiate action for misconduct • Monitor reports by the ICC
Establishment of ICC It shall consist of : • Woman Presiding Officer • Atleast two members committed to the cause of women or having experience in social work or having legal knowledge • One member from Non-Governmental Organization ‘familiar with issues relating to sexual harassment’ (R.4) • Half of the ICC members to be women
Qualifications of External ICC Member • Person having expertise on issues relating to sexual harassment • May include: • A social worker with min. 5 years’ experience in the field of social work leading to creation of favourableconditions for women and addressing workplace sexual harassment issues • A person familiar with labour, service, civil or criminal law
Procedure for Redressal of Complaints • Step 1: A written complaint to ICC within 3 months. (S.9 r/w R.6) • Conciliation: On aggrieved woman’s request, ICC may take steps to settle the matter before inquiry (S.10) • Step 2: Inquiry by the ICC as per Service Rules and principles of natural justice (also where conciliation fails) • Step 3: ICC to give recommendations to the employer • Step 4: Report to be sent by ICC to employer or District Officer
Who can file a complaint? (S.9 r/w R.6) • Aggrieved woman In case of physical incapacity • Through a relative or friend, co-worker, an NCW/SCW officeror any person having knowledge of the incident, with the victim’s consent
In case of mental incapacity • Relative or friend; special educator; qualified psychiatrist or psychologist; legal guardian or authority • Any person with knowledge of the incident, jointly with any of the above Incapacity due to any other reason: • Any person who has knowledge of the incident, with victim’s written consent
Compensation Aggrieved woman to be compensated for (S.15) • Emotion and physical suffering • Loss in the career • Medical expenses Interim relief for victim (S.12 r/w R.8) • Transfer her to another workplace • Grant her leave upto three months • Compensation to be deducted from salary of the respondent
Penal Consequences • As per the service rules applicable to the respondent – Case to be treated as that of misconduct (S.11 r/w S.19) • Where no service rules are in place: (S.11 r/w R.9) – Any action including: • Written apology • Warning, reprimand or censure • Withholding of increment/promotion • Counselling session or community service • Termination from service
How HR and legal teams can frame effective anti-sexual harassment policies • Inquiry to be made with principles of natural justice • Internal policy/HR Manuals for prevention and redressal of harassment to be formulated • Orientation, capacity and skill building programmesfor ICC members • Display contact details of ICC at the workplace
Unresolved Issues • Terms of Settlement in S.10 – Would such conciliation bar an action under the IPC? • Post inquiry victimization – covered by S.3 – Can the victim file a subsequent complaint? • Suo-moto action by the Employer for the “misconduct” of respondent under Service Rules • Variation from definition under the IPC – ‘intention’ irrelevant at the workplace?
Sunil KumarPartner sunil.kumar@rsplaw.inwww.rsplaw.net Thank You!
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