THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

The Ministry of Law and Justice has notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”), which seeks to provide protection to women against sexual harassment at the workplace. The Act also imposes certain duties and obligations on employers and lays down the mechanism for dealing with complaints of sexual harassment at the workplace. The Act is a result of inter alia, the landmark judgement of the Supreme Court in Vishaka and Others v. State of Rajasthan and Others1.

 What is a workplace?

A workplace includes any private office, organisations, society, trust where any commercial, professional, vocational, educational or other services including production, supply, sale are carried out. It also includes any transportation provided to an employee and/or any place visited by an employee arising out of or during, and in the course of employment.

Who can file a complaint?

Any woman who alleges to have been a victim of sexual harassment at a workplace, irrespective of whether she is employed or not, can file a complaint. The Act also defines an employee to mean a person employed on regular or ad-hoc basis, contract labour, and includes a co-worker, probationer, trainee or an apprentice. If the aggrieved woman is unable to make a complaint due to physical or mental incapacity or death or otherwise, the legal heirs or other person as prescribed in the rules made under this Act (“Rules”) can also make a complaint.

What is sexual harassment?

The definition of sexual harassment in the Act includes any unwelcome sexually determined behaviour as physical contact and advances, a demand for sexual favours, making sexually coloured remarks, or showing pornography, etc, and any other physical, verbal, or non verbal conduct of a sexual nature.

Who is an employer?

In so far as the private sector is concerned, employer means any person responsible for the management, supervision and control of that workplace.

Redressal Mechanism

Composition of Complaint Committees

All employers are required to constitute an Internal Complaints Committee (“ICC”) at each administrative unit or branch. The ICC will be a committee of minimum four members under the Chairpersonship of a senior woman employee. At least two members are to be selected from amongst the employees preferably committed to the cause of women or having experience in social work/legal knowledge. The fourth member is required to be from a non-governmental organisation or association committed to the cause of women or a person familiar with the issues relating to sexual harassment. The term of office of the chairperson and members of the ICC is three years.

1 (1997) 6 SCC 241.

A District Officer notified under the Act will constitute Local Complaints Committee (“LCC”) at the district level. The LCC shall look into complaints from domestic workers and complaints against the employer in a workplace. Further, the LCC may also look into complaints from any workplace where the constitution of an ICC is not feasible on account of there being less than 10 persons being employed at such workplace.

Procedure of the ICC/ LCC

When a complaint of sexual harassment is made, the ICC/LCC should, prior to initiating an enquiry, at the request of the complainant, make an attempt to settle the matter through conciliation between complainant and respondent. If a settlement is arrived at, no enquiry is required to be conducted and the ICC/LCC shall record the settlement and forward the same to the employer/District Officer for further action.

If no settlement can be arrived at, the ICC/LCC is required to initiate an inquiry on the complaint of sexual harassment and complete the same within a time period of 90 days. On completion of the inquiry, the report should be sent to the employer or District Officer for further action. The employer is required to take action on the report within 60 days. In making its inquiry the ICC/LCC has been conferred with the powers of a Civil Court and may inter alia summon and examine witnesses, require discovery and inspection of documents.

Interim Measures

During the pendency of an inquiry, the ICC/LCC may recommend to the employer to (i) transfer complainant/ respondent to any other workplace, or (ii) grant leave to the aggrieved woman, in which case the leave granted would be in addition to the leave she would be otherwise entitled to if the case is proved, or (iii) grant any other relief.

Actions that can be taken on a Complaint

Where the complaint has been proved to be true , the ICC/ LCC can recommend action in accordance with the provision of service rules applicable of the organisation to the respondent. In case no service rules of the organisation exist, action against the respondent would be as per the Rules. The ICC can also recommend the employer to deduct an appropriate sum as compensation to be paid to the aggrieved woman/her legal heirs, from the salary of the respondent. In case the respondent fails to pay such sum, the ICC/ LCC may ask the District Officer to recover such sum as an arrear of land revenue.

In case of malicious or false complaint the ICC/LCC may make a recommendation to employer/ District Officer to take action against the aggrieved woman/complainant in accordance with service rules or the Rules.

Appeal

If any person is aggrieved from the recommendations of the ICC/ LCC or the non-implementation of such recommendations, she/ he may, within a period of 90 days, prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person. In case no such service rules exist then, the person aggrieved may prefer an appeal in such manner as may be prescribed by the Rules.

What are the duties of an employer?

Apart from constituting an ICC, as discussed above, every employer is required to inter alia create an environment which is free from sexual harassment. Employers are required to organize workshops and awareness programmes at regular intervals for sensitizing the employees about the provision of this legislation and display notices regarding the constitution of the ICC, penal consequences of sexual harassment etc.

The employer is also required to make an annual filing, which shall include the number of cases filed in his organisation, if any, and their disposal under this Act to the District Officer. If no such annual report is required to be prepared, then the employer shall intimate such number of cases, if any, to the District Officer.

Penalties against employer

A fine of Rs 50,000 will be imposed on the employer in case of violation of Section 4, 13, 14, 22 or other provision under the Act. In case of subsequent violations, the amount of fine will be double together with penalty in the form of cancelation of his licence, withdrawal or non-withdrawal of the registration required for carrying out his activity.

Analysis

This Act is a welcome change to create a safer working environment for women and if implemented in its correct spirit would address questions of gender disparity in the workplace. However, the Act as a legal document has certain limitations.

The Act fails to address the question of prevention of sexual harassment of male workers, whether by women or men co-workers/ bosses. Further, the composition of an ICC would require organisations to ensure that they have staff with adequate knowledge to deal with such complaints. Further, the Act is unclear regarding the reappointment of persons appointed to an ICC in a workplace and consequently there may increase in compliance costs of employers.

Please also note that the remedies under this Act are not exhaustive and an aggrieved person may file a criminal matter under Section 354A of the Indian Penal Code, 1860 (as amended by the Criminal Laws (Amendment) Act, 2013).

*************************************************************************

DISCLAIMER

This alert has been prepared by Sarthak Advocates & Solicitors. It is meant to be merely an informative summary and should not be treated as a substitute for considered legal advice. We welcome your comments and suggestions. For any comments, suggestions or further clarifications, please contact us at:

Sarthak Advocates & Solicitors

A-35, Sector - 2, Noida- 201 301,

Uttar Pradesh

Boardline: +91- 120-4309050

Fax: +91- 120-4249060

Email: mani.gupta@sarthaklaw.com