The Ministry of Women and Child Development, with respect to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”), which turned two on 9th December, issued, on the same day, a ‘Handbook’ on the Act (“Handbook”) which, inter alia, states the following:
Every woman has right to safe workplace: The Act recognizes the right of ‘every woman’ to a safe and secure workplace environment and states that all women whether working (in any capacity) or visiting a workplace shall be eligible to file a complaint against sexual harassment at workplace. It includes women engaged through a contractor with or without the knowledge of the principal employer.
Sexual harassment is subjective: It states that sexual harassment is subjective and that ‘it is the impact and not the intent that matters’ and ‘almost always occurs in a matrix of power.’ To this effect, the Ministry has sought to recognize and differentiate between the impact on a person as a result of welcome and unwelcome behaviour. Among other things it has stated that while unwelcome behaviour is one-sided, power-based, unwanted and invading, welcome behaviour is reciprocal, equality based, wanted and open respectively. It has also provided a list of examples of negative impact on a victim of sexual harassment.
Each case of sexual harassment is unique: Each case is unique and must be examined in its own context.
Policy on sexual harassment must have certain details: the Handbook provides that a policy must (a) prohibit unwelcome behaviour (b) champion prevention of sexual harassment and (c) must provide detailed framework for redress.
Content of complaint: Handbook clarifies that the complaint has to be written and states the details that a complaint must contain.
Do’s and Don’ts for Complaints Committees: The Handbook provides details with regards to the knowledge, skills and training that a complaints committee must have. It also provides the ‘Do’s and Don’ts’ for the complaints committee. It includes detailed steps on addressing a complaint of sexual harassment at workplace and the elements of behaviour that a complaint needs to satisfy. The interviewing tips, process of inquiry and a complaints committee checklist offered in the Handbook also seem to be very helpful.
Penalty for Employers: the provisions under the Act with respect to the filing of reports by complaints committee to the employer and by the employer, in turn, to the district officer seemed to be ambiguous. However, the Ministry has clarified in the Handbook that ‘the report of ICC will be forwarded to the DO through the employer’ and failure to do so shall attract penalty of Rs. 50,000 or cancellation of license in accordance with provisions of the Act.
Expectation of a trained ICC: It states that one has a right to expect a trained, skilled and competent complaints committee, a time bound process, information confidentiality, assurance of non-retaliation, counselling or other enabling support needed and assistance if complainant opts for criminal proceedings.
Provides examples: The Handbook also provides a list of several examples of behaviour which may directly constitute sexual harassment at workplace, which may indicate underlying workplace sexual harassment and merit inquiry (which includes behaviour such as unjustifiably monitoring everything that is done, unjustifiably removing areas of responsibility etc.) and examples of behaviour which may not constitute sexual harassment (which includes following up on work absences etc.)
The Handbook lists down several rights that a complainant and the respondent have and highlights the responsibilities of a complaints committee. It also has many scenario based examples for easy understanding.
Click here to view a copy of the Handbook.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work