India in 2020: Tackling sexual harassment 

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This article is one of four in an annual Vantage Point series where in-house counsel identify key risks and opportunities in the year ahead

With the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act), the legislature has cast a liability on the employer to combat sexual harassment against women in the workplace.

harassment
Kuldeep Sharma

While there are other compliances under the act for employers to follow, an important action expected on their part is to form an Internal Complaints Committee (IC) upon meeting the prescribed threshold headcount, which will take note of the complaints filed under the act, and investigate them.

This onus on the employer has proven to be a great step towards providing women employees with a working atmosphere free from discrimination, hostility and sexual harassment. But at the same time, it poses a bigger challenge for the employer to constitute not only an IC, but one that is effective and functional. When we talk about the challenges that employers, or for that matter IC members, face with regard to the due compliance of the letter and spirit of the act, there are quite a few issues.

Shortage of candidates

The first and foremost issue, which may be the biggest impediment in the constitution and functioning of the IC, is finding the right candidates to act as the presiding officer and/or internal member of the IC. This is a very sensitive and crucial piece of legislation, and the task of judging whether an offence under the act has been committed or not has been given to people who are either not competent enough to handle such a sensitive issue, or are having their own biases for parties involved.

There are many challenges for an effectively functioning IC, but below are some critical ones:

(1) As the act requires the employer to form separate ICs for separate establishments, it can become difficult to find people to be appointed as the presiding officer or members of an IC. Things get more difficult as the act prescribes criteria for appointing members that have legal knowledge, experience in social work, or commitments to the causes of women.

(2) Even if the employer is able to form ICs with available resources, the members of an IC are general business people, and adjudicating matters of this sensitivity is not easy.

(3) The presiding officers and members may often fail to appreciate the facts and evidence available in matters due to their limited acumen of handling an adjudication process.

(4) Another roadblock to the effective functioning of an IC, and effective adjudication of the complaint, is the inherent bias of the presiding officers and members, being either colleagues of or superiors to the parties involved.

(5) The lack of effective training of IC members is another concern. It is required to prepare the presiding officer and IC members so that they conduct a fair and informed inquiry into the matter.

(6) The current rate of attrition in the industry is another challenge. By the time the presiding officers and members are trained enough to handle inquiries, they may have changed their employment.

(7) Although the duty and authority assigned to the presiding officers and IC members are almost equal to a judicial forum, it is a great irony that while the appointed judicial officers are being extensively trained in conducting judicial inquiries and trials, the members of an IC are not trained in a similar fashion. Over and above that, they are expected to conduct a lawful, unbiased and informed inquiry following all the rules of natural justice.

Open to scrutiny

Since the act also provides for a right of the affected party to appeal against the findings of the IC, the inquiry is open to judicial scrutiny by highly trained judicial officers and justices. The high courts on various occasions have either vitiated the inquiry by the IC, or have asked to form a new IC to inquire into the complaint, mainly on the ground of the bad constitution of an IC, on account of the IC not following the rules of natural justice, or on account of the bias of IC members.

Both the government and employers should work towards empowering the IC members, not only by giving them powers of a civil court, but also in terms of training them to work effectively. There have some positive steps taken by the government, including a “She-box” website portal created to not only provide a platform for the aggrieved to lodge complaints, but also to provide resources for training and effective working of the IC, which includes a step-wise enquiry procedure, guidelines for conducting inquiries and training modules etc. Similarly, employers should invest in the effective training of their IC members.

It is required that IC members are carefully appointed and trained properly to handle inquiries, appreciate the available evidence, overcome their biases, handle the parties, and also differentiate between workplace harassment and sexual harassment.

We should appreciate that the provision of an IC within the organization can provide a great comfort for aggrieved women to raise complaints, but at the same time, an effective and functional IC is what is required to instil trust and confidence, both in the complainant and the alleged perpetrator, that a fair and effective inquiry will be conducted.

Kuldeep Sharma is general counsel at Vishal Mega Mart.

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