Prevention of Sexual Harassment Act : What you must know...

Prevention of Sexual Harassment Act- Has this come into effect?

What activities are considered as "harrassment?"

It applies to almost all the Limited Companies; if you are a Company Secretary reading this article, you need to certainly constitute a Committee in your Company & formulate a policy

Internal complaints Committee- Who can be the members ?

Can there a compromise arrived on a Complaint of Sexual harrassment ?

Duties of employer...

Prevention of Sexual Harassment Act : What you must know        

                                                                            CS. Mohan Kumar

The Sexual Harassment  of Woman at Workplace (Prevention, Prohibition & Redressal) Act  has been passed by the Indian Parliament few months back. It has obtained President assent and has been notified 0n 9th December 2013. Consequently all the Companies need to comply with the provisions of this legislation.

The Supreme Court of India in Vishaka and Others Vs State of Rajasthan mandated that all the organizations to implement measures in their workplace to prevent sexual harassment against women including setting up of Internal Complaints Committee. Since there is no existing law relating to workplace harassment, the Supreme Court passed the said ruling, regarding the workplace harassment.

The said Supreme Court ruling is mandatorily to be implemented; however as there was no monitoring mechanism, many companies have not implemented the requirements under the ruling. Since the Prevention of Sexual Harassment Act is passed now, it is imperative for all the organizations to implement the same. 

While the Act talks about the roles and responsibilities of different agencies – an Internal Complaints Committee – constituted within the Company, Local committee , District officer, Central Government, etc, let us look at the requirements mainly from the Company perspective. 

Applicability

Sexual harassment in any workplace will fall under the purview of this Act. The definition of workplace in the Act is very broad and it covers Government offices, Private sector organizations, hospitals and any other place that the employee visits during the course of employment.

What constitutes Sexual Harassment ?

Section 3 provides for prevention of Sexual harassment. It provides that no woman shall be subjected to sexual harassment at any workplace.

Sexual Harassment [Sec 2 (m)] includes such unwelcome sexually determined behaviour (whether directly or by implication) such as—
             
               (i) physical contact and advances; or
                (ii) a demand or request for sexual favours; or
                (iii) sexually coloured remarks; or
                 (iv) showing pornography; or
                 (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Constitution of Internal Complaints Committee

As per Sec. 4, every Company to which this Act is applicable shall constitute an Internal Complaints Committee. The only exception that is being provided is in Sec. 6:  if Constitution of a committee is not feasible owing to the fact that the Company has less than 10 employees, then complaints if any from such Company shall be heard by a Local Committee which will be constituted by the appropriate Government.

The Internal Complaints committee shall have women members in majority and will be headed by a woman employee (who is at a senior level). The Committee shall also have an independent member who is committed to the cause for women.

Complaint on Sexual harassment :

Any aggrieved woman may, at her option, make in writing a complaint of sexual harassment at workplace to :

i) the Internal Committee if so constituted, or

ii) the Local Committee if an internal committee is not constituted or if the complaint is against the employer himself.

In case the aggrieved woman is unable to give a Complaint owing to physical or mental incapacity or death or otherwise, her legal heirs or other person as may be prescribed by Government may make a Compliant.

Provision for Conciliation

Before initiating enquiry under Sec. 11, at the request of the aggrieved woman, the Internal Committee can take steps to settle the matter between her and the respondent through conciliation. If a settlement has been arrived at through such conciliation, the Internal Committee shall record the settlement and forward the same to the employer or the District Officer to take action as specified in the recommendation.

The Act also provides the manner in which enquiry is to be conducted and the powers of the Committee in this regard.

The Committee may also recommend that the Complainant or the respondent be transferred to a different division or branch pending enquiry.

The report of the Committee shall be sent to the employer or the District officer and it shall be made available to the concerned parties (Complainant and respondent). The matter being a sensitive issue, the report shall not be published in any other form.

Duties of employer: 

There are various duties that are cast on every employer in this Act. Sec 19 of the Act lists as many as 8 duties that are to be done by every employer to comply with this legislation such as – Providing a safe working environment, displaying the Order constituting the Internal Complaints Committee, undertake trainings to the employees to sensitize about this legislation, etc.

General:

It would also be a good step if the employer drafts an Anti Sexual Harassment Policy and make it available to all the employees as the same will bring transparency to this issue. It is also imperative to put posters in the office premises giving details about the Internal Complaints Committee to make people aware about the said Committee. Also, every employer should make it very clear that the Organisation has zero tolerance for any type of sexual harassment. Further, the employer shall also need to ensure that there is no retaliation in any form against the complainant even if the compliant is against an employee belonging to the highest echelons of the Organisation (the role of the independent member is crucial in this respect). In fact, if any complaint is received from a female employee, the employer should consider whether her reporting structure has to be changed if the alleged harasser is her manager.

Conclusion :

Since the Act is already implemented, the Company Secretaries in employment shall advise their Management and HR Division about this new legislation and being the Compliance officer, should ensure that the provisions of the Act are complied with in their organization. The Practicing Company Secretaries also may advise their clients to constitute the Internal Complaints Committee as provided in the Bill and to comply with the various provisions of the Act.

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Note to Chennai CS Friends:

SIRC - ICSI is organizing a half day seminar on this important topic on Coming Saturday- and one of the speaker is our good friend Mr. Venkata Krishnan, GM Legal & CS - ESAB India.

Please try to attend this seminar and get to know more details on this topic.