Introduction
Vishaka, an NGO in India, filed a PIL, after a gang assault incident of a social worker in Rajasthan while on work. The event created a stir in the Indian legal landscape. In this landmark incident, the Supreme Court lamented the “legislative vacuum”. The court demanded better Workplace Harassment laws for protecting employees from workplace harassment.
The court reinstated that each workplace sexual harassment case marks a violation of rights. More upfront legal codes are needed to ensure gender equality and the right to life and liberty. Consequently, workplace sexual harassment also violates articles 12, 15, and 21 of the Indian Constitution.
The court further held that any such workplace incident constitutes a violation of the victim’s fundamental right. In the same vein, Article 19(1)(g) gives all civilians the right to practice any “profession”, or “occupation” like business.
While workplace harassment cases mainly affect women, the Workplace Harassment Law covers victims across all gender groups. The primary workplace harassment law that applies to all Indian workplaces is the POSH Compliance India law.
However, many companies lack proactive legal counsel to assist victims of harassment. This article discusses the advanced procedures required at both the employer’s and employee’s levels. India needs to improve access to proactive legal counsel in response to workplace harassment.
What Does the Sexual Harassment Prevention Act 2013 Cover?
The Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act (POSH), a.k.a., Sexual Harassment Policy, applies to all eligible workplaces in India and follows the principles of this act.
As employees, it is essential to be familiar with some key proponents of this Workplace Harassment Law. Employees must understand how it enhances the security of the workplace environment.
How Does the Act Define Sexual Harassment?
In India, sexual harassment covers any form of physical and verbal harassment. Any unwelcome incident like inappropriate sexual behavior, touch, subtle contact, or advanced and upfront elements that come under this act.
Meanwhile, indirect proposals for sexual favors in lieu of corporate benefits, sexually colored remarks, showing pornography, and a broad range of non-verbal conduct, including reminiscing about sexuality, are covered by the act.
Which Offices can effectuate POSH?
For prompt and proactive legal counselling, you need to think beyond the POSH. It begins with understanding what the term “workplace” means in the law. Imagine an unwelcome event occurred with an employee. Another colleague harassed her on her way back to the office pool car. However, the incident happened outside the office.
“Workplace” as defined in the Sexual Harassment Act of 2013 doesn’t refer only to the four walls of the office. It covers any locale where you have to travel for work-related affairs.
You may be meeting a client in a café on behalf of the organization and face harassment while doing so. The act will also cover it. During the COVID-19 pandemic, several employees were working from home. The act covered sexual harassment cases committed through video calling apps, chat profiles, or even in online media.
Does the Act cover My Company?
Suppose your office has 10 or more employees. In that case, the employee is required by Workplace Harassment Law to establish an Internal Complaints Committee with the authority to provide grievance redress in the event of workplace sexual harassment.
If you work in an eligible office and haven’t heard of an existing committee, consider consulting with sexual harassment lawyers or discussing this with your HR department. In connection with this arrangement, it is also crucial to understand what steps the committee might take to address the harassment you experienced.
If the committee determines that it is a minor crime, it should request a written apology from the perpetrator. The Employment Law India supports such actions.
For more serious crimes, strict disciplinary actions, such as documented apologies, may be required. The perpetrator can also be suspended or offered a written warning. Withholding of imminent promotion, pay cut, termination, etc, can also be enacted in the wake of a sexual harassment-related event in the office.
The Duty To Restrict Sexual Harassment
Under the Sexual Harassment Prevention Act, an Internal Committee is established to investigate and address any act of harassment against employees in the office. However, the same provision also raises some undeniable questions-
- What would happen when this IC is working superficially or influenced or controlled by the perpetrator(s) in one or more ways?
- The consequences if the members of the IC are not neutral; what kind of Corporate Legal Risk would it entail?
Based on these undeniable grounds, the Delhi High Court passed a verdict stating that the IC cannot reject any complaint made before it, as the victim was delayed in making the call to report the complaint.
If there are witnesses to verify that the perpetrator is likely to have been involved in the crime for which they are accused, the IC will have to take the case seriously. In the same connection, the Rajasthani High Court also ruled that the aggrieved women in the workplace don’t have to submit a mandatory complaint in person, as per Workplace Safety India.
How Should A Bias-Free Enquiry be Conducted?
According to Workplace Harassment Law, the elementary principles of natural justice should prevail in case of sensitive allegations like workplace sexual harassment. In the same connection, the Kerala High Court stated that the POSH committee in a company should carry out a full fledged inquiry into the issues.
The IC can take reference from several case laws existing across the high courts and the supreme court while passing judgment. From the purview of good HRM, it is crucial that employers set the right benchmark for workplace harassment case redressal. Otherwise, recurring harassment issues can also lead to defamation and eventually cancellation of registration.
The Bombay High Court opined that every CEO should consider the formulation of an efficacious and comprehensive IC for POSH implementation a top priority. The court also ruled that it’s high time for employers to start worrying about the safety and dignity of employees working with them.