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KelpHR along with PeopleMatters conducted a webinar on “Tricky cases and best practices while handling Sexual Harassment incidents at workplace” on November 29th 2016. This event was attended by more than 135 participants from across corporate India. Click here to listen to our webinar.
At the end of the webinar, during the Q and A session, we received many relevant queries from the participants based on the everyday situations faced by them at their workplace. For the benefit of all, KelpHR, brings these questions along with the responses for your reading. Do write to us at firstname.lastname@example.org for further queries on this topic and we would be happy to clarify.
Q: Does this policy or act “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, Act 14 of 2013.” is only for women, is there an act for gender neutral. I know most companies generally has ” no harassment no discrimination”
Response: The Act – Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) 2013 is one that protects women only. It does not cover complaints of sexual harassment of men.
However, an organisation on it’s own accord, may choose to make their policy gender neutral. The implementation of the policy will differ as cases where a woman claims to be the victim will be investigated by the IC. Cases raised by men, will be investigated by the Employee Grievance Cell or other investigative bodies (could be IC too as defined in the policy) within the organisation that’s responsible to check on Workplace Harassment of its employees.
Q: What would we do if evidence is not found – for e.g. in Christine case, what if the CCTV footage wasn’t available?
Response: Unfortunately, there are many cases where there is no evidence – Investigative interviewing is the only way to know if the person engages in a behaviour that leads to sexual harassment. The alleged victim, alleged respondent, colleagues, supervisors/managers can be interviewed to understand the alleged respondent’s behaviour patterns. Cue could be taken base on the body language and a comparison of written and verbal explanation of the incident details and occurrence time. If all investigation, fails to prove the case, then no recommendation will be given and case will closed as No evidence found.
Q: But as per law, doesn’t the investigation get triggered only upon written complaint of the complainant? So in Reema’s case, no one else can file it for her.
Response: Yes – The IC can begin investigation only if the complaint is in writing. The IC can assist the alleged victim to write the complaint. All support has to be extended to the victim to ensure that the complaint comes to the IC in writing. Witnesses may also raise a complaint in good faith. Finally if victim refuses to files written complaint, HR may take the case further under the Code of conduct policy to ensure a safe and secure workplace for all.
Q: What should be some important component of dating policy? Is it mandatory as per the Anti Sexual harassment act?
Response : An important component of the dating policy is to clearly state that supervisors and team members in a direct or dotted line of reporting, cannot work in the same department, once they are in a consensual relationship as this may lead to favouritism and may arise a scenario of Hostile environment for other members of the same team. The dating policy is not mandatory as per the Act. But good to have as per the organizations code of business conduct. This a recommended best practice.
Q: If we have a lady in a team and one of the directors addresses her Babe and baby at all time…People are uncomfortable though the lady employee is ok with this…your advice please
Response: A victim isn’t always a person who is being sexually harassment – She/he may be a person who is exposed to a hostile environment that affects their productivity. If this behaviour is causing a problem in the team, one can speak to the Director and the Lady team member and mention how their behaviour impacts others and let them know that they should stop. They may also take up the case with their Internal committee or HR to handle such situations.
Q: Are women employees confident and forth coming to report cases?
Response: Our survey 2016 has shown us that 69% of employees, who are harassed, do not report about the case. The reasons vary from embarrassed to fear of retaliation. It is very important that the organization and management sets the right awareness, provides their support and promotes Zero Tolerance. They should encourage good faith reporting and prompt closure of cases. Some of the organizations that we work with are very vocal and even conduct separate women only Awareness sessions.
Q: Has there been occasion where a complaint was not raised in good faith? Can you share what actions are taken against such complainants, if it is established that the complaint was not raised in good faith?
Response: The 2013 Act clearly states that malicious complaints or complaints raised with false evidence/false witness is punishable. The complainant/ witnesses will need to be penalized as per the service rules of the Company.
Q: The ICC recommendation goes to the company’s management? What if the company’s management does not accept the ICC decision in totality?
Response: IC are vested with civil powers and their recommendations are legally binding. Management takes a risk by going against it. If the Management does not accept and implement the decision of the IC, then the complainant or respondent can approach the next level i.e. the first level of judiciary to appeal the case i.e. the Civil court, Labour Union and the District courts.
Q: An anonymous complaint on social media about a manager from an ex employee- how can it be dealt with?
Response: Anonymous complaints should be classified as 2 types:
If the first type of anonymous complaint is received, the IC may take it up as part of Prevention measures along with HR’s support to create a safe work environment. The issue can be investigated and persons involved are to be interviewed. The issue can be concluded based on the evidence received. Though this will not be treated like a case triggered by a formal written complaint from a victim.
However, not much can be done with a vague email that has no inputs for an IC to begin their investigation.
Q: Which qualifications/ skills/ experience background should we look for in the NGO representative in our IC?
Response: As the law states, an NGO member must be one who has :
These include members who are part of NGO organisations or with legal knowledge of the Act, as well as are on boards of other Anti Sexual Harassment panels
The person should exhibit traits of being fair, unbiased, neutral, mature, subject matter expert, no past criminal record, believes in this cause of prevention of sexual harassment.
Q: How can we build confidence in employees to come forward to report the cases?
Response: In our opinion, building confidence in employees to report issues is a gradual progression as the organisation creates a culture of openness and transparency.
Employees are confident about a topic when they have an exposure to it, there are forums that they can present their questions to (without feeling the pressure of being judged by their team members or managers) and the topic is easy to discuss.
In the case of Sexual Harassment, this topic is sensitive and still a taboo in many social groups. As organisations create multiple forums to openly discuss this issue via trainings, easy access to committee members, Access to helpline or 3rd party members to counsel etc, employees will slowly start having confidence in asking questions and reporting issues.
Q: Apart from Termination, what are the other kinds of actions that can be taken up? 2. Is this formal termination as per law or is the defendant allowed to resign?
Response: Termination and all recommendations given by the IC should be in sync with the Disciplinary Action Policy of the company or should be part of the internal Anti sexual harassment policy of the company. Recommendation may vary from Apology, warning, deduction of Salary to compensate the victim’s loss, Pay or role change, Termination etc
Penalties should vary based on the extent of the offence committed. However, in all cases, it is advised that the perpetrator is given counselling so that he/she is given an opportunity to help themselves out of the situation.
The Law does not state whether the person should be terminated or allowed to resign. Organisations need to define this for themselves, based on current practises followed for the any breach in following company policy and based on the severity.
Q: Can you throw some light on legal aspects of the same law?
Response: Please refer to some of our blogs on this aspect
Q: Some times, people who involve in sexual harassment at very high position in that case IC even don’t help the person who has been harassed, what is to be done in such situation?
Response: IC has the powers equivalent to the Civil Courts – They need to complete their role in a unbiased and non-judgemental manner and present the recommendations to the Management. The Management is advised to follow or take action on similar lines.
In all cases, the complainant and respondent have the opportunity to appeal at the civil courts in case the recommendations are unsatisfactory. The victim has all the right to file an FIR with the Police under Indian Penal Code 354 and 509 or reach out to NGO organization for their support or Advise.
Q: How do you handle cases where the accused person claims that his social credentials were mis-used on internet to send an offending message for eg.
Response: While this may be difficult to prove, the employee can be interviewed to understand the dynamics in the team, reason for the perpetrator to misuse and proof for misuse, etc thus come to a conclusion on the reasons for the offence.
Q: To what extent should we be involved in POSH matters reported by employees against their spouse? Is it governed by any other Act since they are married or we follow POSH process?
Response: The question to answer is where did the Sexual Harassment occur? Law clearly defines the purview as ‘Sexual harassment at the workplace’. If Harassment has happened at home or other unofficial places, then this would not fall under the purview of Internal Committee team as part of this Act and need not be taken up for enquiry. However, as part of employee welfare, the organization’s HR can guide or counsel the couple or help the victim to file a police compliant if required.
Q: In case incidence has taken place outside office, will HR have to take action?
Response: The definition of the workplace has undergone a drastic change over the last few years. The law clearly states any place where the complainant was deputed to, for work purposes. This includes any place that the complainant may visit, for official reasons.
E. g.: If the complainant, during her/his assignment, took a flight and was harassed on the flight by a colleague or a 3rd party, then the complainant needs to be investigated by the IC.
Q: In certain organisations, protocol states that any issues are to be discussed with Line manager or HR. Who takes precedence in such cases of reporting – HR / Line Manager or IC?
Response: Reporting is done by the individual i.e. the complainant and IC should be the only forum to handle Sexual Harassment cases – Other department employees are advised to not initiate investigation or speak to the complainant on the matter. Reason being IC members are trained and equipped to handle such sensitive cases in which confidentiality is of utmost importance. If untrained personnel handle the case, the chances of jeopardizing the evidence or witness will be high.
Q: Does the scope IC also include harassment against differently abled employees, which is not a sexual harassment incident?
Response: No, Harassment on any other aspect or of a differently abled person does not come under the purview of this POSH Act. Harassment which is not sexually inclined will have to be dealt under the workplace harassment or discrimination policy.
Q: If someone call by saying just “Dear” without adding name as suffix.
Response: The tone, body language of the respondent and the impact on the listener needs to be taken into consideration.
Q: However if the IC recommendation is not accepted by management
Response: IC is vested with civil powers and their recommendations are legally binding. Management takes a risk by going against it. If the Management does not accept and implement the decision of the IC, then the complainant or respondent can approach the next level i.e. the first level of judiciary to appeal the case i.e. the Civil court, Labour Union and the District courts.
Q: What if accused is part of IC. How the situation be dealt in that case?
Response: In such cases, the accused IC member will be replaced and a new committee member will have to be added for the case to be inquired. The complainant has the rights to request in writing with the reason for requesting the change in IC member. The same will be considered by the IC team if reason is justified.
Q: In a scenario, where there is a complaint that fits in SH definition, but the complainant refuses to go with ICC and wants to go with HR – is that ok? Or can we coax the complainant to raise the case with ICC?
Response: As per the Law, IC is the only forum where Sexual harassment complaints are raised and redressal is sought for. No other department’s action or redressal will be accepted by the court of Law. It is important to understand why the complainant is not comfortable with ICC. The complainant has the rights to request in writing with the reason for requesting the change in IC member. The same will be considered by the IC team if reason is justified.
Q: Does IC help only cover on roll employees of an organization or can also address incidents from a third party consultants deployed by the entity?
Response: According to the Act, employee means a person employed at workplace for any work on regular, temporary, adhoc or daily basis, either directly or through an agent including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or voluntary basis, includes, co-worker, contract employee, probationer, trainee, apprentice etc.
Q: What if the victim states that the IC decision is not fair, can the HR or mgmt intervene to have fair call.
Response: The victim may appeal at the Civil Courts in case; he/she is of the opinion that the recommendations provided by the IC are not satisfactory.
Q: Also if a person in the IC has grudges with the victim, may not want to help the victim, how can such cases be handled of biases from the IC, if any.
Response: The complainant has the rights to request in writing with the reason for requesting the change in a specific IC member. The same will be considered by the IC team if reason is justified.
The IC needs to be a neutral and an unbiased forum – it is important to involve the external member for their unbiased judgement too. Together, the IC then needs to hear the complaint and provide the recommendation to the Management.