Home

SEXUAL HARASSMENT AT WORKPLACE: A CORPORATE PERSPECTIVE

December 6, 2021

Background

In 1993, the Government of India ratified the Convention on Elimination of All Forms of Discrimination against Women (“CEDAW”),[1] following which the Supreme Court has now incorporated basic principles of human rights enshrined in the Constitution of India as under Article 14, Article 15, Article 19 (1) (g) as well as Article 21, along with the provisions of CEDAW.

In 1997, with the passing of the groundbreaking judgment in the case of Vishakha v. State of Rajasthan,[2] the Hon’ble Supreme Court for the very first time, laid down guidelines for preventing sexual harassment at workplace. These guidelines enumerated by the Court were to be treated as the law declared under Article 141 of the Constitution.

These guidelines went on to form the basis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).[3] The POSH Act amplified the definition of the workplace to include informal sector, containing domestic workers. It extends protection to all workers in the public as well as the private sectors including health, sports, education, government institutions, and any other place visited by the employees through the course of her employment.

With the widespread outrage during the #MeToo movement, people have become more sensitized towards the issue of sexual harassment, especially at workplace, and the corporations have become much more alert so as to avoid any reputational damage to their company, lawsuits, vicarious liability of the employers, while also retaining their staff members.

Compliance with the POSH Act in Corporate Sector

As per the POSH Act, certain mandatory measures are to be enforced by the employers in order to defend the interest of women at workplace. These include:

  1. Internal POSH Policy:A company is required to formulate an internal POSH policy with the objective to establish a secure working environment for the female employees. As per this policy, every corporate entity must constitute an Internal Complaints Committee (“ICC”), in accordance with the POSH Act. The employers are responsible for the safety and security of its employees against sexual harassment, and for this purpose, a well-executed policy must:
  2. Forbid undesirable conduct that may amount to workplace sexual harassment,
  3. Make its employees aware and sensitized towards this issue.
  • Furnishes a meticulous framework for redressal of any grievances arising therewith.
  1. Internal Complaints Committee or ICC:[4]For every corporation comprising of ten or more employees, it is mandatory to constitute an internal committee for recording and processing complaints and ultimately redress the grievance of the wronged employee by recommending suitable actions to be taken by the employer. This committee is required to be headed by a ‘female presiding officer’.

In case of grievance not being resolved internally, the ICC is under a duty to forward the same to the District Officer.

Furthermore, the Hon’ble Delhi High Court in  M/s Air France India and Anr. v. Ruchika Singh Chhabra[5] laid down that “…the ICC should be constituted in strict compliance with the requirements under law…”

An aggrieved employee may submit a written complaint to the ICC within a period of three months from the incident. However, the ICC has the authority to condone any delay in submitting the complaint beyond this three months period.

  1. Sensitization and Training Programs:Every organization must conduct, at regular intervals, orientation and training programs for its employees. The issues of sexual harassment must be thoroughly discussed and employees must be duly informed about the impact of the same on their personal as well as on the company’s reputation.
  2. Annual Report:As per the POSH Act, the ICC is required to submit an Annual Report to the Registrar of Companies, with the details of all the sexual harassment complaints filed with the employer and the District Officer over the year and how many files are still pending or closed.[6]

It is pertinent to be noted that the Ministry of Corporate Affairs vide its notification dated July 31, 2018, amended the Companies (Accounts) Rules 2014,[7] on a request by the Ministry of Women and Child Welfare. As per the Amendment, it is now compulsory for every company to disclose that all the provisions of the POSH Act have been properly implemented. Furthermore, in case of any non-disclosure, a company can be made liable in accordance with Section 134 of the Companies Act, 2013. The section now includes “A statement that the Company has complied with provisions relating to the constitution of Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.”[8]

  1. Penalties: Under the POSH Act, an employer can be penalized for non-compliance, in the following cases:[9]
  • Failure to constitute ICC.
  • Failure to act upon recommendations of ICC.
  • Failure to submit its Annual Report to the District Officer.
  • Flouting or attempting to flout or abetting any contravention of the POSH Act or Rules therein. In case of an employer violating the provision more than once, he shall be subjected to double the punishment or higher punishment as prescribed under the law at the time.

Sexual Harassment and Work from Home

In the ‘new normal’ of the virtual work spaces with a major chunk of the corporate sector ‘working from home’, the menace of sexual harassment still exists. The POSH Act covers against any such act committed in the ‘workplace’. The workplace defined under the act talks about only the physical environment and not the virtual one. This leaves a major loophole in the application of the act in instances of virtual sexual harassment of employees.  However, if relied on the intention of the legislature, it may be presumed that ‘home’ may be construed as an ‘extended workplace’ and sexual harassment of an employee in this environment, fall within the purview of the POSH Act.

While keeping this key issue in sight, a more advanced redressal mechanism is required to be adopted by the corporations and monitor its implementation.

Conclusion

Even though the corporate sector is rapidly developing in India, the nuisance of Sexual Harassment has not been completely eliminated. Decades after passing of the Vishakha Guidelines and years after the enactment of the POSH Act, aggrieved employees still find themselves in a position of vulnerability and helplessness.

The existence of instances of sexual harassment in a workplace considerably undermines the quality of working culture, mental stability of employees, and ultimately jeopardizes the standards of the work being done. It is high time for each and every organization to responsibly adopt an all pervasive policy and ensure its implementation and strict punishment to the offenders.

Related Articles:

To know more about Labour Law in India, read below:

[1] https://www.unwomen.org/en/digital-library/publications/2016/12/cedaw-for-youth

[2] AIR 1997 SC 3011.

[3] https://legislative.gov.in/sites/default/files/A2013-14.pdf

[4] Section 4, POSH Act.

[5] MANU/SCOR/21700/2018.

[6] Section 21 and Section 22, POSH Act.

[7] https://www.mca.gov.in/Ministry/pdf/NCARules_Chapter9.pdf

[8] Section 134 (8) of the Companies Act, 2013 states- “If a company is in default in complying with the provisions of this section, the company shall be liable to a penalty of three lakh rupees and every officer of the company who is in default shall be liable to a penalty of fifty thousand rupees.”

[9] Section 26, POSH Act.

Anushka Choudhary, Intern at S.S. Rana & Co. has assisted in the research of this article.

For more information please contact us at : info@ssrana.com