Sexual Harassment- A good article on practical tips for employers for handling SH cases and demarcating SH cases from HR related cases

India - Challenges Faced By Employers In Addressing Sexual Harassment Complaints.

Legal News & Analysis - Asia Pacific - India - Labour & Employment

23 August, 2016

A Brief Background

Sexual harassment at the workplace was first recognized as a violation of basic human rights by India’s apex court, the Supreme Court (SC) in Vishaka v. State of Rajasthan (Vishaka Judgment) in 1997. In its judgement, the SC opined that sexual harassment was violative of the fundamental rights of women guaranteed under the Constitution of India, 1950 including the constitutionally guaranteed rights to life, equality, dignity and to practice any profession/carry on any occupation, trade or business. Accordingly, and in the absence of specific legislation at that time, the SC had enunciated guidelines for the prevention of sexual harassment at the workplace.

Post the Vishaka Judgment, it was judicially observed that the guidelines framed were not being followed in various workplaces and the need for a specific legislative framework on prevention of sexual harassment at work was acutely felt. In December 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the rules therein came into force (collectively, the SH Laws). Among other things, the SH Laws lay down a mechanism for redressal of complaints of sexual harassment at work. The SH Laws have been in force for almost three years and the Ministry of Women and Child Development has even issued a handbook about the same with the intent of such handbook being used as a practical guide. However, employers still face many practical challenges in acknowledging and responding to complaints of sexual harassment. Through this short piece, we examine some more prominent/ prevalent challenges faced by employers in this regard.

Demarcating Inappropriate Behaviour From Sexual Harassment

Many employees are still unclear about whether an incident would constitute sexual harassment or not. Due to this, employees sometimes file complaints even though the behaviour in question may not constitute sexual harassment within the statutory definition of the term (as set forth in SH Laws). This leads to the employer facing a dilemma as to how to process and handle such complaints – whether they should be handled by the internal complaints committee (ICC) constituted under the SH Laws or if the employer should deal with it in accordance with its own internal complaints processes. It would be prudent for the employer in such situations to refer the matter to its ICC so that it can decide whether or not the behaviour in question constitutes sexual harassment as defined under the SH Laws. This might mean that a case of misconduct/ unethical behaviour, which could have been quickly addressed under the employer’s internal policies, takes longer to be addressed given the process/timelines prescribed by the SH Laws.

However, it will ensure that the employer remains compliant with  SH Laws.  As an aside, to ensure that employees are aware of the SH Laws and to sensitise employees towards behaviour that constitutes sexual harassment, employers should conduct regular workshops, trainings, role plays, etc. While it may not be possible to cover all possible scenarios, regular employee training would go a long way to handling the practical challenges faced by employees and employers in addressing sexual harassment at the workplace.

Sufficient Evidence or Proof 

In most cases of sexual harassment, it is difficult to gather evidence or produce witnesses as instances of sexual harassment or allegations thereof, are based on behaviour that most typically takes place in private. Also, SH Laws do not prescribe the standard of proof in cases of sexual harassment and as such, this adds another layer of complication in so far as evidence is concerned. Judicial precedents that state that the standard of proof in domestic enquiries should be that of preponderance of probabilities and not of ‘beyond reasonable doubt’. That means that a fact can be said to be proved when a deciding authority either believes that it exists or considers its existence to be so probable that a prudent person ought, under the circumstances of a particular case, to act upon the supposition that it exists. Given the standard of proof required and the fact that most of the times, the act/ allegation thereto takes place behind closed doors, sufficient and conclusive evidence is always a challenge, albeit a procedural one.

Name of Complainant and Written Complaint – Whether Necessary to Initiate An Inquiry 

The SH Laws require a written complaint of sexual harassment to be made either by the victim or by any other person authorised by such victim. There is no provision under the SH Laws to entertain complaints made on a no-name, anonymous or oral basis.

However, there are many instances when complainants prefer to remain anonymous to avoid being identified and/or being subjected to any social pressure and stigmatisation. In such cases, rather than take the view that there is no legal obligation to take any action on the complaint, it is preferable that an employer should make efforts, while retaining confidentiality, to extend comfort to the anonymous complainant and encourage such a person to come forward so that the appropriate process can be initiated. Especially in cases where repeated anonymous complaints are received concerning a particular person, the employer, while taking all relevant safeguards, may want to investigate further.

The Way Forward

In conclusion, with a codified law in hand, we have come a long way in protecting women from sexual harassment in the workplace. But we still have some way to go before we arrive at an efficient and effective mechanism to address these situations. We are headed in the right direction, however, and with time, adherence to global best practices and judicial guidance, we are sure we will overcome these challenges.

For further information, please contact:

Cyril Shroff, Managing Partner, Cyril Amarchand Mangaldas

cyril.shroff@cyrilshroff.com 

Reference:  http://www.conventuslaw.com/report/india-challenges-faced-by-employers-in-addressing/?sthash.AYMXfzkc.mjjo#sthash.AYMXfzkc.kflcF5K0.dpuf