News & Events

The Sexual Harassment Act - Now In Force

Submitted By Firm: Trilegal

Contact(s): Ajay Raghavan

Author(s):

Date Published: 12/26/2013

Article Type: Legal Update

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Background

Most employers are now familiar with the existence of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the Act).  This Act was pending final notification (as indicated in our earlier newsletter).  The Act has now been formally notified and brought into force with effect from 9 December, 2013 along with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the Rules).  While the Rules are in force, they have to be placed before the Parliament as per Section 29 of the Act.  The Parliament has a period of 30 days to assess the Rules and it remains to be seen whether it will make any further modifications.
 
We have briefly assessed the Rules in this newsletter and discussed some gaps and questions that remain which the Rules have failed to address.

Key Provisions in the Rules

Inquiry process: An important addition in the Rules relates to the manner in which a complaint is to be enquired into.  The Rules contain provisions such as (i) the complainant should provide 6 copies of the complaint along with supporting documents and names and addresses of the witnesses; (ii) the accused should be provided copies of the complaint within 7 working days along with supporting documents; (iii) the accused should file his reply within 10 working days of receiving the complaint, etc.  Further to Section 18 of the Act, the Rules also state that any person aggrieved by the recommendations of the complaints committee may prefer an appeal to the appellate authority notified under the Industrial Employment (Standing Orders) Act, 1946.
 
Annual report:  While the Act already makes it clear that the complaints committee must prepare an annual report, the Rules elaborate on the contents of the report and state that it must include details about the number of complaints received and disposed of, and even the number of workshops or awareness programs against sexual harassment that have been undertaken.  The report also needs to include information on the number of cases pending for more than 90 days and the nature of action taken by the employer.
 
Action against employees: The Rules provide for types of action that can be taken against an accused who is found to have committed an act of sexual harassment or a complainant who has filed a false or malicious complaint.  Action may be taken in accordance with the company's service rules, and in their absence, the employer may take action including requiring a written apology, issuing a warning, counselling, community service, reprimand or censure, withholding of promotion, withholding of increment or termination from service.  The Rules also provide that where the person in charge of dealing with complaints of sexual harassment publishes the identity of a complainant or witness, he will be liable to pay the employer a sum of INR 5000 as penalty.
 
Formulate a policy and conduct awareness programs/workshops: The Rules have also elaborated the employer's duty to organize awareness programs and workshops to sensitize employees and orientation programs for members of the complaints committee.  Employers are now required to formulate detailed sexual harassment policies and widely disseminate them at the workplace and use modules developed by the State Government and conduct workshops and awareness programs for sensitizing employees about provisions of the Act.  Employers will also be required to conduct capacity building and skill building programmes, apart from regular orientation programmes and seminars for members of the complaints committee.
 
While these are a few aspects on which the Rules have been able to throw some light, unfortunately various issues continue to remain unresolved.
 
Concerns
 
Certain ambiguous provisions in the Act had led to a lack of clarity, potentially resulting in onerous conditions being placed on the employer.  It was hoped that the Rules would address these lacunae and ease some of the significant difficulties in interpretation of such provisions of the Act.  A few major concerns that are yet unaddressed in the Rules are:
 
Committees to be established at each branch when located at 'different places': The Act requires the employers to create different committees for each branch or office, where these branches or offices are located at 'different places'.  The Rules have not provided clarity on whether the employer is required to create committees for each branch or office located in the same city.  We understand from the Parliamentary Standing Committee Report, 2011 that the Ministry did not intend employers to create committees at every branch or office in situations where it would create administrative difficulties and expected these modalities to be elaborated upon in the Rules.  Unfortunately that has not happened and companies will continue to face the dilemma of deciding whether to set up multiple regional or branch specific committees or a single committee which is responsible to handle all claims within the organization.  Informal discussions with the Ministry of Women and Child Development indicate that they are taking a strict view and all establishments with 10 or more employees need to have a separate committee.
 
Mandatory obligation to initiate criminal proceedings: The Act also imposes a mandatory obligation on the employer to initiate criminal proceedings against the perpetrator in instances of sexual harassment.  The Rules don't clarify whether the employer is required to initiate criminal proceedings even where the aggrieved person is unwilling to approach the police.  This may impose an obligation on the employer to mandatorily report all offences amounting to sexual harassment (however minor) or be penalized for non-compliance irrespective of the complainant's consent or willingness to initiate such action.
 
Witness list to be shared with accused: The Rules require the complainant to submit to the committee the names and addresses of the witnesses, along with the copies of the complaint and supporting documents and requires the committee to send these documents to the alleged perpetrator of the offence.  However, it is unclear if the intent is to also share the names and addresses of the witnesses with the alleged perpetrator of the offence.  In a sensitive issue such as sexual harassment and especially in cases where the alleged perpetrator is in a supervisory or senior position, sharing the names and addresses of witnesses could lead to potential victimization or intimidation.  While the Parliamentary Standing Committee Report, 2011 suggested including more protection to the witnesses to prevent them from being victimized, this has not been addressed or clarified in the Rules.
 
No penalty for committee: Under the Act, the primary obligation of prevention and redressal of sexual harassment at the workplace is on the employer.  While there are obligations placed on the committee to complete the inquiry process within strict timelines, prepare annual report etc. there are no penalties on the committee for non-compliance with these provisions.  The provisions of the Act dealing with the duties of the employer are broadly worded and this may result in the employer being penalized for the committee's non-compliance.
 
Broad definition of workplace: The Act has included a wide definition of the term workplace which does not restrict the scope of the Act to the employer's premises.  While this is a commendable step, this has created some confusion on whether the Act would cover incidents that occur outside the workplace when the employees are interacting in a personal context and not in connection with work.  The Rules have not elaborated on the wide ambit of the definition of 'workplace' and this could potentially increase the employer's liabilities and compliance requirements as it could also cover personal relationships, marital disputes when spouses work with the same employer etc.
 
Concluding Remarks
 
While the government's decision to finally bring into force the much needed legislation to address issues of sexual harassment is laudable, the timing and content of the Rules leaves a lot to be desired.  Though the Act passed earlier this year may have had its deficiencies, it certainly was a result of much deliberation and discussions with public stakeholders.  However, the Rules do not seem to have been put through the same process.  A number of issues raised in the Parliamentary Standing Committee Report, 2011 were not incorporated into the Act and there was hope that these would be resolved in the Rules.  That has not happened and authorities may take very strict views on the compliance requirements under the Act and Rules.  Now that the Act and Rules are finally in force, all employers must immediately take steps to constitute committees and implement a policy addressing the provisions of the Act and Rules.

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