How should legal and human resources departments respond once a sexual harassment complaint has been raised? Gautam Kagalwala finds out
Some men willingly expose themselves to occupational risks by working in construction, law enforcement or an NGO in a conflict zone. These hazards can come in many shapes and sizes. But for women, there is an additional hazard at the workplace they must always be wary of – men. Experts say derogatory remarks or men seeking sexual favours are more commonplace than outright assault.
With poor awareness of their rights and institutional mechanisms to handle workplace harassment, female employees may directly air their grievances on social media. The result would be scrutiny from the media, in addition to legal risks. So, how should companies handle complaints made public?
When harassment occurs, it is up to the company’s human resources (HR) department and the Internal Complaints Committee (ICC) to handle the matter tactfully and empathically. The legal department has to carefully monitor and guide the company’s response due to the legal and reputational risks. The ICC is empowered by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH).
Harassment can also result in police involvement as it is a criminalized offence under the Criminal Law (Amendment) Act, 2013. The legislation, which amends the Indian Penal Code, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, was passed following nationwide outrage over the fatal sexual assault of a physiotherapy intern in New Delhi aboard a bus, in December 2012.
HR managers are the first responders to harassment incidents as the interpersonal relationships between staff members fall under their domain. “As per the POSH Act, a written complaint is mandatory for the ICC to take cognizance of the sexual harassment complaint,” says Preeti Balwani, general counsel at Kraft Heinz. “The HR business partner should have a detailed conversation with the aggrieved person to understand the issue and complaint at hand. They should also explain to the aggrieved person their rights under the company’s HR policy. The HR department should encourage the aggrieved person to speak to the legal department so they can be apprised of their rights under the law.” Balwani adds that her company’s harassment policy applies to both women and men, while the POSH Act only applies to women.
“In my view, the HR department has a significant role to play to prevent occurrence of such incidents, rather than [to act] after they take place … the jurisdiction and authority vests with the ICC or the local complaints committee (LCC) as the case may be,” says Arka Majumdar, a partner at Argus Partners, who handles labour and employment matters. He adds the role of the HR department should be to sensitize employees on the illegality of sexual harassment, its description and definition under the law, the ICC/LCC complaints process and legal remedies available to employees.
“The committee constituting the relevant members should be called immediately and they should already be trained to manage such complaints,” says Sanjit Kaur Batra, the legal head (South Asia) at DuPont. “Confidentiality is of utmost importance. It is critical to ensure that there is no retaliation against the complainant.”
Roma Arora, the deputy general manager of legal at Havells India, agrees that a woman must feel comfortable that she can approach the ICC. “The confidentiality angle should be taken seriously since complainants won’t come forward if they fear the information will get leaked. The members should be understanding and sensitive and ensure that women are part of the body.”
Unlike other misconduct situations, the HR manager will be unable to fire or transfer the accused employee to another office, as the decision rests with the ICC. The ICC could recommend actions ranging from issuing warnings to expelling the accused based on the severity of the act. In accordance with the POSH Act, the management has to carry out these recommendations within 60 days of receipt of the ICC report. There is an additional element of time so companies should find out when the harassment incident took place to ascertain if they are dealing with legal or reputational risks, or both.
Shivangi Prasad, the co-founder of POSH at Work, a consulting firm specializing in prevention of sexual harassment, says the ICC is legally bound to handle complaints In accordance with the POSH Act if the incident has occurred within three months. The ICC is empowered to grant an additional three months if they feel the circumstances justify the extension.
“Older complaints are time-barred under this law. But our practical advice to clients is that they should look into the complaint if the respondent is an employee. If there is any truth in the complaint, it may be raised in a similar fashion later on. If there is another complaint then [the company] is in a more damaging situation as there was a red flag earlier and no action was taken,” says Prasad. She adds that the media would not look at the incident from a legal perspective but rather see the failings of the company to safeguard its employees.
The penalty for non-compliant companies ranges from a fine of ₹50,000 (US$700) to cancellation of company licenses or registration for subsequent offences. However, Arora says these measures are not strictly enforced.
“The legal department may also have to provide certain support to the ICC on matters wherein legal guidance or interpretation is needed on any aspect, without violating the confidentiality obligations,” says Manishi Pathak, a partner at the employment practice at Cyril Amarchand Mangaldas. “The HR and legal departments would need active sharing of information while ensuring compliance with applicable laws. Also, both have a role to play after the ICC has issued its findings and enforcement thereof consistent with law and/or company policies.”
“It is critical for the [HR and legal] departments to work as a cohesive unit,” says Balwani. “There should be transparency and collaboration between the departments to work together to mitigate all areas of potential risk in such cases. While the primary goal is to protect the aggrieved person’s safety and well-being, the two departments also need to think about reputational and other risks, the company will be potentially exposed to in the wake of such incidents.”
“Typically, the legal and HR heads will brief the CEO together and work to investigate the complaint in accordance with the set processes of the organization. The legal head will guide the organization about the processes to be followed and the implications as well as implementation of the decisions taken,” says DuPont’s Batra. The legal department also gets involved at a later stage if HR wants to pursue legal action against the offender.
Lack of awareness
There is a general lack of awareness about actions that can be considered as sexual harassment. In a conservative country such as India, there is less interaction between men and women, and a man’s risqué jokes or poor attempt at courtship can be construed as such. Women do not know their legal rights at the workplace or situations when they can file a complaint with HR or the ICC.
Prasad says there was one instance where the ICC initially viewed a complaint as a case of employee misconduct because the complainant was being called fat. They later found that the actual allegation was that the complainant was taunted, “You are so fat, who would want to f*** you?” According to the woman, this had become a regular joke in the office and was creating a hostile work environment for her. The committee then looked into the matter as a sexual harassment complaint.
However, Arora adds “frivolous complaints are also part of the scenario”. “If there is an argument, a woman can threaten her male colleague by saying ‘I can file a complaint against you’. This makes male colleagues feel insecure and the management might feel it’s difficult to handle so many female colleagues.”
The Ministry of Women and Child Development has emphasized prevention as a strategy by empanelling organizations and law firms, and conducting awareness programmes. More than 50,000 participants have attended the over 700 awareness sessions on the POSH Act as of November 2018. The empanelled organizations have to inform the ministry about the number of sessions held and the companies that have participated. Prasad’s POSH at Work is one of the empanelled organizations. She observes a steady increase in queries from women since 2017 on whether to file a sexual harassment complaint or to approach the ICC. “The #MeToo movement has resulted in a 150% increase in requests for us from companies wanting to hold awareness sessions at offices,” she says.
“HR departments should invite legal departments to company policy review meetings, which will allow the latter to help upgrade HR policies, in line with the law,” says Balwani.
“When the HR department plays a proactive role, the legal department can help in framing an internal policy against sexual harassment and evolve a permanent mechanism for the prevention and redressal of sexual harassment cases at the workplace,” adds Argus’ Majumdar.
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