Following the horrendous Delhi gang-rape in December 2012, the Indian Government was besieged with protests and demands to enact far reaching legislation to protect women. It was forced to expedite the long-awaited enactment of the Protection of Women from Sexual Harassment Bill of 2010, which had taken over 13 years to be drafted and to reach Parliament, and a further three years to be enacted. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 eventually came into force on 23 April 2013.
Under the Indian Constitution, all citizens have the right to be employed in the profession of their choice or to practice their own trade or business. The case of Vishakha v State of Rajasthan (1997) established that actions which violate a person’s right to ‘gender equality’ and ‘life and liberty’ violate that fundamental Constitutional right. In that case, the Supreme Court of India set out what are known as the ‘Vishakha Guidelines’, to protect female employees from sexual harassment at work. The Act builds on these guidelines - it is more comprehensive in nature and attempts to define very clearly the role, duties and responsibilities of employers in preventing and dealing with the sexual harassment of women at work.
Main features of the Act
The definition of sexual harassment under the Act includes any unwanted behaviour of a sexual nature (whether directly or by implication) such as physical contact and advances, a demand or request for sexual favours, remarks of a sexual nature and showing pornography. The Act attempts to target sexual harassment as a social menace and, therefore, has a wider remit. Notably, the definition of ‘workplace’ includes places that employees visit in the course of their employment as well as travel for their work, where the transportation is provided by the employer.
The Act imposes a number of duties on employers. All employers must ensure that they provide a safe working environment for their employees. Staff Handbooks must include provisions relating to sexual harassment and state that sexual harassment will be treated as misconduct, and employers should take appropriate action if a sexual harassment incident is reported.
Employers are required to set up an internal complaints committee (ICC) at each office or branch which has 10 or more employees. The ICC, which must have a minimum of four members, at least half of whom are women, will hear the sexual harassment complaints. A Local Complaints Committee (LCC) will be set up in each district to hear complaints from organisations where there are fewer than ten employees, or where the complaint is against the employer himself.
The ICC and LCC have the same powers as a civil court, including gathering evidence and requiring witnesses to attend and give evidence on oath, as well as making recommendations to the employer, granting the employee up to three months’ leave and awarding compensation to be paid by the harasser in the form of deductions from their salary. There is no cap on the compensation that can be awarded, and the factors that will be taken into account include mental trauma, suffering and emotional distress, the loss of career opportunities and any medical expenses the employee incurs for physical and/or psychiatric treatment. The income and financial status of the harasser may also be taken into account.
Significantly for employers, they will not be vicariously liable, so they are not required to pay the compensation awarded to the employee. The harasser alone is liable for this. However, it is conceivable that the law will change over time and in the future, employers will be required to compensate employees who have been subjected to sexual harassment at work.
The complaint to the ICC or LCC must normally be made within three months of the date of the alleged incident, or if there has been a series of incidents, within a period of three months from the date of the last incident. The ICC or LCC’s inquiry into the allegation of sexual harassment should be concluded within 90 days, and the employer must assist them by providing documents etc.
Another requirement under the Act is for employers to organise regular workshops and awareness training for employees and to also display, in a conspicuous place in the workplace, the order constituting the ICC and the penal consequences for employees who sexually harass female employees.
Employers also have a duty to help the employee file a police complaint if she wants to press criminal charges against the harasser.
Implications for employers
If employers fail to comply with the Act, they may be fined up to 50,000 Rupees. Repeated non-compliance could lead to the local authority cancelling their certificate which permits them to carry on their business.
The number of women in the workforce has grown significantly in recent years and with it, the number of complaints of sexual harassment. But now social attitudes to the treatment of women have changed in India. Aggrieved employees are no longer prepared to suffer in silence while sexual harassment is accepted and ignored. Against this backdrop and the changing socio-cultural landscape in India, it is imperative that employers comply fully with their obligations under the Act, not only to avoid incurring fines and suffering reputational damage, but also to embrace what the Act is seeking to achieve. After such a lengthy legislative process, it will be interesting to see how long we have to wait for the Government’s aspirations behind this legislation to be realised, to achieve gender equality and greater economic empowerment for women.