It has been more than 2 years since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act”) (to be read in consonance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”)) was notified and enforced in India. Further demonstrating its commitment to protecting women from sexual harassment at the workplace, the Government of India, through the Ministry of Women and Child Development, has published a Handbook on Sexual Harassment of Women at the Workplace (the “Handbook”), intended to primarily inform employees about workplace sexual harassment and their right to an informed complaint process in seeking redress as provided under Act and Rules, in a more lucid form. While the intent of the legislation has been lauded, implementation of the Act has created unique challenges for employers in India, with hurdles emerging in the form of day-to-day situations that the Act does not address. In this article, we explore the key challenges that face employers in India in the implementation of the legislation and its rules:

1. Difference between ‘harassment’ and ‘sexual harassment’

The Act specifically provides for redressal of complaints of sexual harassment only. However, employers often receive complaints that claim to be about sexual harassment but actually are complaints of general harassment. Alternatively, there are complaints of general harassment filed with the employer that include elements of sexual harassment. One question that arises is how to deal with such complaints and whether they should be referred to the company’s Internal Complaints Committee (ICC) or if they can be dealt with by the employer in accordance with its internal processes for harassment or unethical conduct.

In situations where a complainant makes a claim of sexual harassment, the employer should not deliberate on the matter and should instead refer the claim to its ICC, which will make the determination on whether the alleged complaint is sexual harassment or not, as per the definition and scope set out under the Act. In complaints of general harassment where elements of sexual harassment appear, the complainant should be informed of her rights under the Act so that she can decide on how to proceed and whether to approach the ICC or not.

The Handbook has provided some clarity in this regard by providing examples of not only behaviour that constitutes sexual harassment at the workplace (e.g. teasing relating to a person’s body, stalking, unwelcome flirting etc.), but also behaviour that may indicate underlying workplace sexual harassment that may merit inquiry (for e.g. humiliating a person in front of colleagues, exclusion from group activities, inappropriately giving too much/little work etc.).

The authors would like to acknowledge the efforts of Bishen Jeswant, Associate, Cyril Amarchand Mangaldas in writing this article

2. Gender-neutral policies
Determining social context
In the international context, employer policies against sexual harassment tend to be gender-neutral, affording protection to both men and women. However, the law in India extends protection from sexual harassment only to women, though the perpetrator could either be male or female. While nothing prevents an employer from adopting a gender-neutral policy on sexual harassment, it may be noted that in the Indian context power equations at the workplace and in society have been such that women are usually the victims of sexual harassment. Therefore, when drafting a gender-neutral policy, it would be important to ensure that the social context is taken into account when facing sexual harassment claims by men.

Powers of the ICC :
When extending a policy drafted under the current Act to cover both genders, it would be important to also note the hurdles that may arise if the decision of an ICC is challenged. The first concern is about the powers of an ICC. Since an ICC is conferred certain quasi-judicial powers under the Act (including the powers to summon and enforce the attendance of any person and to examine him on oath, requiring the discovery and production of documents), the question remains whether an ICC will still retain such quasi-judicial powers while investigating a complaint filed by a man and whether such powers can be bestowed on an ICC through contract.

Appeal process :
Another issue that arises is whether the decision of an ICC where the complainant is a man can be appealed as per the provisions of the Act. Given that the right to appeal has been established by statute, it is unlikely that the labour authorities would entertain such a matter. In such instances, an internal appeal mechanism may be built into the policy

3. Composition of the ICC :

The Act prescribes, in no uncertain terms, the qualifications and gender of the members that have to constitute an ICC. However, employers find that fulfilling the requirements on composition creates many issues, such as the ones highlighted below.

Multiple locations :
Employers having offices in multiple locations across India often face the dilemma of whether enlisting a panel of ICC members (say, 4 to 10 members) from which the employer can choose—depending on the parties involved and the location of the hearing—will be in keeping with the letter of the Act.

Profile of ICC members :
The identity and position of the members vis-a-vis the complainant and the perpetrator (whether in direct reporting line and seniority) is an important consideration when determining the right composition of the ICC to hear complaints of sexual harassment. This becomes a vital issue, given that the Act is based on the premise of creating a non-biased environment for redressal of complaints.

Appointment of foreigners or persons from group companies outside India:
Employers are also appointing employees of group companies located outside India to be part of an ICC. The Act is silent on whether foreign nationals can be a part of an ICC. In the absence of any specific restriction to this effect, foreign nationals may be permitted to be a part of an ICC, provided they meet certain criteria set out in the Act. For example, a person employed with a group company may not be a valid member of the ICC if he is not employed at the same workplace or with the same employer
Further, such appointment needs to be examined from the point of view of whether the person so appointed will necessarily have the social context in which sexual harassment has to be viewed and whether such employee will be sensitized to the social realities in India.

Senior women employees:
Not all employers have women employees in senior positions. Such employers have to decide whether a woman employee who is not a ‘senior level’ person may be appointed to the ICC. The employer needs to consider whether a junior-level woman employee appointed as the chairperson of the ICC would be able to fulfil the role that is expected of her under the Act and whether sensitizing her to the anti-sexual harassment policy and the procedures therein will be sufficient to abide by the Act.

4. Standard of proof 
Evidentiary requirements
The Act and the Rules do not provide any specific guidelines relating to what will qualify as evidence in a case of sexual harassment. Most instances of sexual harassment take place in private, which may not result in any written evidence or first-hand witnesses. The courts in India have held that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities
The theory of preponderance of probabilities suggests that a fact can be said to be proved when the court either believes that it exists or considers its existence so probable that a prudent person ought, under the circumstances of a particular case, to act upon the supposition that it exists.
Courts in India have held that a disciplinary proceeding is not a criminal trial and, thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt.
While the Handbook does not set out any evidentiary standards, it does throw some light on the do’s and don’t to be followed by the ICC during evidence collection, inter alia, that the complainant should not be required a give a graphic description of the sexual harassment, the complaint should not be discussed in the presence of the complainant and respondent, that predetermined bias should be discarded and that the ICC members should use body language that inspires confidence and communicates complete attention to parties. The Handbook also provides detailed steps to be followed by the ICC when addressing and resolving a complaint.

Character of the complainant :
There are case laws, including foreign judgments, which emphasise that bringing up the past history or character of a woman is an attempt to leverage on prejudices and to make proceedings uncomfortable for the complainant, to the extent of her abandoning, withdrawing or settling the complaint. Hence, the ICC must be careful that it does not refer to and is not influenced by any allegations about the past history or character of a woman complainant for determination of the proceedings.
Motive of the accused
In a bid to protect themselves, perpetrators often bring up the lack of motive on their part to engage in sexual harassment. It should be noted that the Act does not require intent or motive to be proved for a case of sexual harassment. If the action or behaviour of an accused is not motivated/mala fide, it could still amount to sexual harassment if it falls within the ambit of its definition under the Act and makes a woman feel uncomfortable, creates a hostile environment, or has an impact on her physical or mental health, even if the accused claims there was no intention to do so.

5. Anonymous Complaints :
The Act and Rules do not contain any provision to address anonymous complaints and, from a strict reading of the Act and the Rules, it appears that a complaint should be made by the victim herself or any other person she authorises. However, employers often find that complaints are made anonymously or that the complainant does not want to be identified.
In such cases, going strictly by the letter of the law, an employer may be able to take the stance that there is no obligation to proceed further with the complaint. However, it is important to keep in mind that the intent behind the legislation is to provide a workplace free from sexual harassment. Based on this, the question that arises is whether an ICC can take suo moto action against information regarding sexually harassing behaviour that it is informed of. In such cases, it may be prudent for such behaviour to be investigated and discouraged so as to ensure nothing more untoward occurs. Ignoring certain types of behaviour despite it being brought to the notice of the employers, albeit not strictly through the processes prescribed, may not be defendable. In such circumstances, it is also important for employers to reinforce their stance against sexual harassment, repeat training sessions and counsel women employees into reporting sexual harassment without fear of any adverse implications.

6. Conduct of meetings :
Videoconference
It is often difficult to ensure the physical attendance of all members of an ICC for any or all hearings. Employers resort to virtual means, such as videoconferencing, to convene meetings of an ICC. With one or more members of an ICC attending through videoconference, the meetings can be conducted with ease. While the Act is silent on convening of ICC meetings through videoconferencing, the frequency and circumstances of holding a meeting of an ICC where members can attend via videoconference must be analysed, keeping in mind the sensitivity and time pressures in concluding the process.

Absence of external member:
On various instances, an ICC may face a situation whereby the external member of the ICC is unable to attend the hearing. Therefore, often in urgent situations, an ICC is left with the sole option of conducting the meeting without the external member, not knowing whether it should go ahead with the meeting. The Act does not address this issue specifically. Based on the then prevailing circumstances, it must be analysed whether the absence of the external member, while not against the letter of law, will be defeating the spirit of the legislation (which purports to provide a non-biased environment for redressal of complaint).

7. Lodging of FIR and company’s role :
There is a growing trend among complainants to go ahead and file a first-information-report (FIR) against the perpetrator simultaneously with lodging a complaint with the employer. If faced with such a situation, the employer must tread carefully in its conduct towards the perpetrator (also an employee of the company). The actions of the employer must be measured so as to not depict any bias in favour of the perpetrator-employee. This includes the fact that the employer must not seek to protect or represent the perpetrator-employee in any forum, at whatever level. A high level of cooperation with the police investigating the incident must also be shown by the employer. Additionally, an ICC must carry on the investigation with regard to the complaint of sexual harassment as per established procedures.

8. Annual Reporting :

The employer is under an obligation to submit an annual report on redressal of complaints of sexual harassment to such authorities as may be notified under the Act. Many states have not issued a notification determining the authority. However, to ensure compliance with the provisions of the Act, some employers have filed the annual report with the labour department (jurisdictional labour commissioner). This action must be weighed with the obligation of confidentiality imposed on the employer for information pertaining to complaints of sexual harassment. Submitting information on sexual harassment complaints to authorities which do not have the jurisdiction for such matters may actually be in breach of confidentiality obligations.
Further, arbitrary submission of the annual report exposes the risk of the report falling into the hands of press/media. The press/media may publish information on the number of instances of sexual harassment in the company without giving any information on the redressal process. This, in turn, may lead to bad publicity for the employer.
Therefore, as an alternative, an employer may submit a letter to the relevant ministry informing it that the annual report has been prepared and that the employer is awaiting a notification on the authority to which the report must be submitted.
When dealing with these often practical issues where full compliance with the letter of the legislation may either not be possible or may result in a situation where the intent of the act is not being served, it would be important for each situation to be analysed keeping the intent of the legislature in mind (i.e., a workplace free from sexual harassment) and ensuring that the principles of natural justice are served and no person condemned without giving him a fair hearing.

Source: (By Rashmi Pradeep and Ankita Ray) www.shrm.org