End Sexual Harassment: How to comply with the Sexual Harassment Law enacted in 2013

First of all, please note that even if you are compliant with the Vishakha guidelines laid down by the Supreme Court that came into force more than a decade back, you may not be compliant with the new law which came into force now, replacing the previous law on this subject matter.

Earlier, there were no serious penal consequences for not complying with the guideline, but now an employer who does not take care to follow this legislation run the risk of paying hefty fines or in extreme cases even lose business license.

The law also seeks to set in motion an entire machinery that can fight sexual harassment within the workplace, and it is a quite interesting decentralization of enforcement of a law, where an internal complaints committee set up within an organization is expected to be at the forefront of implementing and enforcing the law. They are even required to apply the principles of natural justice and appreciate the value of evidences submitted by various parties and make a quasi-judicial decision. The internal complain committee is even vested with the power of a civil court – though what that exactly entails will take some time before is established through customs and protocols.

This is not to be done just at every organization, but at every workplace with more than ten employees. This means an organization operating from different offices or having multitudes of branches have to set up separate internal complaints committee at each of these locations.

For employers, HR professionals and office managers

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a first of its kind Act in India that seeks to protect working women.

The Act puts the onus on employers to create an enabling environment for women which must be free from all forms of sexual harassment. Specifically, the Act lays down a complaint procedure for the benefit of women who have been at the receiving end of sexual harassment at the workplace. A practice is developing consistently across all sectors to make HR managers or in their absence office admin to ensure compliance with the law.

Creation of internal complaints committee:

Section 4 of the Act unequivocally states that all workplaces employing ten or more workers must establish an Internal Complaints Committee ("ICC"). This means every premises of your organization which has 10 or more employees has to establish a separate ICC, and a common ICC appointed for all premises simultaneously will not be acceptable under the law.

The ICC must consist of at least four members and must be headed by a senior woman employee. The committee must also include two members from amongst the employees preferably committed to the cause of women empowerment or with experience in social work or legal knowledge. There must also be a third party member, preferably affiliated with a non-governmental organization. For workplaces that have less than ten employees, complaints must be filed at local complaints committees at the district level.

It is important to mention here that members of ICC needs to be trained and capacity building programs should be carried out. Here is a cloud based training program that doubles up as a toolbox to implement the law as well as capacity building training for HR managers or admin persons in charge of implementation as well as the ICC members.

Compliance with report of ICC:

The ICC has to complete its inquiry within 90 days of receiving a complaint. During the investigation, the complainant may ask the employer in writing to transfer the aggrieved woman to another workplace or to grant her leave for a period which may extend to 3 months for ensuring her safety. The employer is duty-bound to fulfill the wishes of the complainant.

After the inquiry is completed, a report will be sent to the employer or the District Officer for workplaces that have less than 10 employees. The employer or the district officer is obligated to take action on the report within 2 months. The employer must also ensure that the report is submitted to the district officer wherever necessary.

The ICC may ask the employer to take appropriate action against the accused in accordance with Section 13 if the allegation is proven. Similarly, as per Section 14, the employer may be asked to punish an employee who files a malicious complaint.

Generating awareness about sexual harassment:

Employers have to sensitize not only ICC members but all of its employees, irrespective of language or location barriers. As per Section 19 of the Act, employers are required to organise orientation programmes, workshops and awareness programmes for sensitizing employees. Most employees are unaware of their rights and duties with respect to Sexual Harassment at Workplace and it is a legal duty of the employer to ensure they are trained with respect to this.

In reality, doing such training on regular intervals for a distributed workforce, in different languages can be next to impossible. You can consider a mobile and computer delivered cloud based training product like End Sexual Harassment for this. Please contact 8377972123 if you need any help with this.

Other requirements:

Annual records and reports have to be maintained and provided to governmental inspectors on request as per Section 22.

Employers are required to display at the workplace details of the penal consequences of indulging in acts of sexual harassment, the composition of the ICC and the grievance redressal mechanism available to aggrieved women.

Penalty for non-compliance

An employer who fails to comply with the aforementioned requirements would be required to pay a fine of Rs. 50,000/-. Moreover, if the offense is repeated, the fine may be doubled or the business license may also be cancelled.

Thus, employers are morally as well as legally responsible for taking all possible measures for safeguarding the interests of female employees.

This article was written by Ramanuj Mukherjee, one of the Founders of End Sexual Harassment and iPleaders.