It is a bitter truth that ‘freedom’ in its full sprit and excellence is still a distant dream irrespective of gender. The modern civil society strives to maintain gender neutrality at work place, and women, commendably have shred out their inhibitions and emerged to hold key positions and works towards economic growth of the society. The increasing number of women in employment, however, has also created unfortunate avenues for exploitation in multiple forms, the grievous being sexual in nature.

The Indian Government, realized that the guidelines formulated in the famous case of Vishaka Vs State of Rajasthan, was not ample enough to contain the menace, hence, passed a specific statue called Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Objective of the Act

The objective of the Act is to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and matters connected therewith or incidental thereto.

It is the duty of all employees to ensure that the work environment attains highest ethical standard in inter personal behavior, especially with woman employees.

All forms of discrimination and conduct which can be considered harassment, coercive or disruptive, or which create a hostile or offensive environment is strictly prohibited and is not be tolerated. Instances of sexual harassment whenever brought to the notice of the management of the organization should be dealt expeditiously and inquired in accordance of law.

Definition of the Sexual Harassment

The Act attempts to comprehensively define as to what amounts to Sexual Harassment at work place. “Sexual harassment” of women employees includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:-

• Physical contact and advances; or
• A demand or request for sexual favours; or
• Making sexually coloured remarks; or
• Showing pornography; or
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Sexual harassment of a woman employee would mean to include abuse of authority by any person in charge of the organization or any person employed by it to exploit the subordinate woman employee to harass her in a manner which prevents or impairs the employee's full potential. It also includes behaviour that overtly or covertly abuses the inherent power to threaten, coerce or intimidate an employee to accept sexual advances or make employment decision affecting the individual or create an intimidating, hostile or offensive work environment.

The organization should accord and recognizes that it has the duty to prevent or deter the commission of any acts of sexual harassment at the workplace. The circumstances of sexual harassment at employment may include any unwelcome sexual behaviour by any person either individually or in association with other persons or by any person in authority whether directly or by implication and includes:

• Implicit or explicit promise of preferential treatment in her employment.
• Implied or explicit threat of detrimental treatment in her employment.
• Implied or explicit threat about her present or future employment status.
• Interference with her work or creating an intimidating or offensive or hostile work environment for her.
• Humiliating treatment likely to affect her health or safety.
• any other act likely to affect one's privacy and includes any act or conduct by a person in authority and belonging to one sex which denies or would deny equal opportunity in pursuit of career development or otherwise making the environment at the Workplace hostile or intimidating to a person belonging to the other sex, only on the ground of sex.

Obligations of the Employer

The Act casts few specific obligations on the Employer to comply with.

• Safe working Environment: It shall be duty of the Employer to provide safe working environment at the workplace which shall include protection from all types of exploitation from the persons coming into contact at the workplace.
• Sexual Harassment as Misconduct: The Employer should treat Sexual Harassment as ‘misconduct’ under the service rules/employment agreement and initiate action for such misconduct. If the employment agreement or service rules do not factor sexual harassment as ‘misconduct’, the Employer may be required to redraft the service rules accordingly.
• Workshops: The Employer should make arrangement and facilitate workshops and awareness programs at regular intervals for sensitizing the employees on the issues, implications, constituents and penal consequences of sexual harassment etc.
• Internal Complaints Committee: The Act obligates that if the Organization is having ten (10) or more employees, irrespective of the number of women employees, it should constitute an Internal Complaints Committee (ICC). Such ICC should comprise of at least minimum of three (3) members. The Act mandates, that the Presiding Officer of the ICC should be a senior woman employee and the ICC shall be incomplete if it does not have an external member. The External Committee should be preferably and NGO with 5 years of standing committed to the cause of women or an advocate.
• Orientation to ICC: It is highly important in selecting the ICC members since the ICC would attain few powers as envisaged under Civil Procedure Code, 1908 including the powers to take evidence, administer oath etc. It is imperative to conduct orientation programmes to the members of ICC so as to acquaint them with the legal and other procedural formalities involved.
• Policy: The Act also mandates the Employer to ensure and keep in place a Policy on Prevention of Sexual Harassment at Workplace detailing out the organisation’s policy on curtailing the menace.
• Display Board: The Employer is required to prominently display in conspicuous place of the office premises the name and address of the committee members and penal consequences of the act of Sexual Harassment.
• Annual Report: The Employer should monitor timely submission of annual reports by the ICC.

The Act further makes some pertinent provision which amplifies the scope and extent of the application of the Act.

Work Place: The connotation of work place is wide enough to include any place visited by the employee arising and out of the course of employment including the transportation provided by the Employer for undertaking such journey.

Employee: The Act defines and employee to mean a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

One of the important feature of the Act is that it enables the Organization to handle the subject within its four corners, however as prescribed by the Act and Rules. The ICC if concludes the perpetrator guilty, can recommend any form of punishment including

• Written apology
• Warning, Reprimand or Censure
• Withholding of promotion or pay rise/increments
• Removal from service or Dismissal
• Forfeiture of superannuation benefits
• Undergoing of counseling session

Interestingly, the above stated punishment can be prescribed by the Organization if the complaint is found frivolous.

Non Compliance of the Provisions of the Act

If the organization fails to comply with the provisions and does not constitute an ICC, it not only it loses the opportunity to handle the matter within the organization since then the matter would be handled by the Local Complainants Committee formed by the respective Government but also the Act cast a first time liability of Rs.50,000/- and for continued or subsequent non-compliance, the penalty doubles and may even lead to cancellation of the License of the Employer/revocation of any statutory business licenses.

Conclusion

Keeping pace with the objective of the Act, it is a commendable initiative and social responsibility. It is important that the organizations should comply with the provisions with open will and work towards ensuring the fundamental right of freedom in its true spirits.

The Act undoubtedly is enshrined with sharp edges and many of the provisions are likely to be tested by the Courts in future.

Author - Vineed Abraham & Bindhu Antony

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