A Webinar conducted by KelpHR with NHRD on 16th June 2017 on the topic, Incidents Of Sexual Harassment of Women At Workplace and Best Practices. The following is the link of the webinar ….
Experts have answered the following FAQ’s asked by our participants from various companies during the webinar session…..
1. What does the Law state about ICC and LCC? Please elaborate on LCC?
By Mukul Rastogi
Ans: Primarily an organization having 10 or more employees should have ICC, now it is called IC (Internal Committee), earlier it was called ICC (Internal Complaint Committee). Now Government has realized that ICC is only for redressal like a complaint committee. They wanted to add more responsibility of prevention and prohibition. So, they have termed it as Internal Committee. Likewise, for organisations which has less than 10 employees, for them the District labour Office has to create a LCC (Local Complaint Committee) in each and every district across India. There is a list we have which is available, we can share with you all, where all these complaints can be handled by LCC.
2. What should we do when the resources are very critical for the project he is on, and gets involved in such SH cases. It’s not about compromising the values but let’s not forget the loss to the business as well.
By Milind Desai
Ans: Yes, we Understand that but primarily values are something that drives within, if you don’t have the right kind of people it is like letting Dawood Ibrahim be the Prime Minister of the Country. So, we cannot come up with all these kind justifications. I had many cases where managers are trying to protect their key employees, but we put our foot down and that’s why the IC is formed, to be unbiased. The perpetrators thought could be, “I am a high performer, So I can go gallanting, I can do whatever I want”. So, IC have to make at least one such strong decision to give a strong message to the entire organization, that this behavior is not acceptable despite what your role or background is.
3. In case-2, do you consider clicking pictures without permission as sexual harassment or on what basis their employer was terminated?
By Pradeep Phani
Ans: Yes, there were two instances clicking pictures without permission, I mean he was discreetly —- without her permission is sexual harassment. Yes, looking at somebody inappropriate is sexual harassment. Yes, these all are harassment. Any behavior which is unwelcomed is sexual harassment, so that the intent of the person is not valid but impact is valid. The lady was impacted she was thinking that somebody continuously taking her pictures, she was getting harassed and secondly why he was terminated was because he lied under oath. When you come for an enquiry IC has Civil Court authority, you have to take an oath whatever you say will be true to your knowledge, after signing the declaration he lied, it was more severe. We had to terminate him. – Smita
Any picture clicked by me or not, if my image is present in that picture, by law that picture in my IP. The rights go back to the person in the picture. We need to be cautious with pictures as they can be morphed anyway.
4. How do you form POSH committee and what is the role of social worker in the committee? Social worker should be internal or external?
Ans: Very clearly IC formulation says that we should have a 3rd party. Now that 3rd party could be a social worker, could be someone from an NGO or somebody who has knowledge about this law or somebody who has worked in this field, not necessarily a social worker. It could be a 3rd party, external to that organization. Primary role of this 3rd party is to be unbiased and fair in all hearings and bring truth to the table. Sometimes if the cases are against the chair person or CXO of the organization at that time the remaining IC team may not feel comfortable to question the CXO, that time this 3rd party has to step in and strike the balance. So, the role of the 3rd party is very important. That’s why Government has ensured that it is mandatory that an external person should be part of this IC. – Smita
There have been IC case that has gone to high court. There the judges have given the verdict that a IC case report without a 3rd party stands invalid and have been dismissed. So, the IC case has to have the 3rd party while investigation. – Viji
5. Do all firms have IC established and who tracks it?
By- Raj Reddy
Ans: We are still not confident of all the organisations in India having an IC, so we at KelpHR constantly help out the organization to form the IC. District office’s role is to ensure that they do that and ministry of Women and Child Development, are ensuring compliance and seeking clarifications. In fact, annual returns have to be filed with District Officer about the working of IC and audited if they have formed their IC and I see lot of people now ensuring that their compliant. We still have a long way to go is what I feel. – smita
At least the awareness level show that the Act came in 2013, awareness level has been increasing in lot of people. Thanks to media. Lot of organization are gearing to be compliant to the ACT in order to protect their brand image and employee’s morale as well. There is still some non-compliance here and there, hopefully much better in the last some years. If you take Tehelka case it clearly shows it dint have an IC that’s why it was blown out of proportion. If they had IC then I am sure it wouldn’t have been blown out and would have been controlled by a 3rd party with the unbiased views.
6. How do you handle such cases where the harassment over the phone and there is no evidence of any recording as such?
By Sunil Kumar Yogesh
Ans: But now a days, technology is at its high, if somebody is telling us that there has been harassment over the phone there are tracking or recording mechanisms available. Which we ask them to use. I have not yet handled any cases where there was only telephone conversation. In general now a days with truecaller, WhatsApp and everything we have that facility, so what would I recommend the lady or gentlemen whoever is being harassed to use a tracking device or recording device on their phone and also record this conversation if they can.
Other thing possibly do is IC can go file an FIR on the company’s letter head requesting them to access the respondents phone records and with the FIR, if produced to the telephone service provider they will share all the details of the call. This other thing which is possible and definitely you could verify that whether at that particular time the call came to the person or not. All these things can be verified and the transcripts if possible service provider may be willing to share.
7. In case of sexual Harassment and if it’s not proved and happens outside the office premises (on an external conference), what call does the HR take?
By –Farook Omar
Ans: There are two parts to this question. One: it is not proved. Second: if it happens outside the work premises which could still be a workplace. So not necessarily that everything happens outside the workplace is not proved. There could be proof, witnesses, there could be 3rd party witness not a part of the organization. So, we can actually speak to those people also. So, if proved as such it can be convicted. Now there are many cases out of 10 at least 4 to 5 do not get right proof. We have to close the case on time so we ensure that there is no direct relationship between the victim and the respondent working in different shift or departments and we monitor closely the victim and respondent. Watch out, if there are any repeat cases against the victim or respondent. Set prevention mechanisms in place.
8. There is a thin line between what is acceptable and what is not. Many women are starting to mis-use this. I recently managed two cases which was a fake complaint?
By – William
Ans: There are malicious intent cases being reported, many times it has happened like malicious intent complaint has come up in fact 10% of the cases that I deal with come from malicious intent. Two things mention here how a person impacted is important, if in anyway like small thing like how in north of India it is very common in its way of expressing happiness and same thing in south of India it may not be acceptable. So, you have to understand what is acceptable to one person cannot be acceptable to the other person. So, we have to work on the principle of natural justice. So, intent of person lack of natural justice, so considering all this IC should be fair and should not sway saying she was confused as sexual harassment.
I will give you an example shared earlier about the fashion store. It has happened and at that time the lady kept contemplating whether she was getting confused by the intent but she was getting impacted, because he was looking at her inappropriately. Also, women have this 6th sense and they get alerted, they get uncomfortable if the vibes are not right so please when you are in IC and overlooking such cases ensure that you look at it without any bias, without getting swayed by the victim or respondent. Be sensitive to the victim, lot of times what happens in first time when victim comes with an issue and you look at it and say “voh chaltha hai”, please don’t say that because the victim has lost its trust on IC or do not give your comments like “oh this guy, I knew this kind of things will come in days”. So, we have to be very sensitive when we are in IC.
9. How do you safe guard male employees against malicious complaint? Like what are his rights if he is proved that the complaint has been made with malice in mind what little sources can he resort.
By Adit Joshi
Ans: IC has the power to punish the lady who has come up with the malicious intent. So, IC has all the rights to support the truth. if the respondent is not happy or not confident on IC then definitely can approach the legal sources, go to police and file the complaint but IC should step in. We ensure that we come through malicious intent, like if you see one of the cases we talked about where both men and women used profanity they both exchanged wrong language right and what we did was not only punished the man we also punished the women by giving her a strict warning because she dint talk about her usage of same language she only talked about him, we were little empathetic towards the man because he was true and she tried to hide the fact. So, we were very stringent with the lady.
10. How do you know for any given case if we should ask for witness to testify? What if the witness is a friend of the respondent or victim?
By Smriti Sinha
Ans: There are instances we find friends of the victim or respondent, so first of all very clearly anybody is coming into your inquiry room, you have to explain them the consequences of speaking wrong or saying anything which is false. And get them to sign a NDA and sworn testimony declaration. Explain to them about the Civil Court rights you have as an IC and the consequence of violation. But many a times because of human nature tendency witness may get swayed towards their friend, you will have to look up the relationship also. And also look for more witness who are more neutral. You Need not consider the witness statement of the earlier one and we look for more clues or evidence.
Following the process and procedures and having the right templates for documentation really helps us quickly in closing the case without getting deviated.
11.What if there is a repeat offender, what should be the IC stand in that case given to the person calling female colleague while drunk is it ok to terminate?
Ans: In case of repeat offense, when first warning is given we clearly mention what will be the consequences if repeated. That should have gone in the first place in the warning letters. If its repeating again then depending on severity you should go and take action because we need to set a clear message to other employees as well. Otherwise everyone will take it for granted.
12. If a female has raised a complaint with IC and the IC met her and requested to send a detailed complain with specific instances. We sent the first order sheet however post first meeting, complainant refuses to acknowledge or speak with any further on the matter. we sent multiple reminders over the mail and otherwise and also tried to speak with her directly but she refused to take this case forward?
Ans: Very clearly there are 2 things, the complaint or case is dealt like Civil Court proceeding where we send notice of hearing. When complainant is not responding you cannot take it forward, and hence mark the case as closed after 3 notice of hearing. If it is from the respondent side, the after 3 notices are sent and respondent does not turn up you may give the judgment as ex-parte. That is in the absence of the person. That is what happens when either complainant or respondent do not turn up.
Also as a best practice, if the complainant (victim) has not come forward, you need to
- Rule out if she is being threatened or retaliated.
- Also, since redressal is not possible, ensure prevention of future similar instances.
13. How do you deal with situations where women at work is putting her boss or peer under POSH due to organization politics?
By- Laxman Kodupakka
Ans: Clearly if there is no Sexual Harassment and she has complained that means it is malicious intent. Now just because there is some office politics and you cannot assume she is doing because of that. I recommend a thorough investigation to figure out why has somebody complain, trust me it is very difficult for a women to walk up to IC or HR and tell them what are they going through. Any complaint needs investigation, do not pass a judgment before you investigate saying that this is because of office politics. If malicious intent is proven then strong action has to be taken against the complainant.
14. At times people come back with really small issues and report it as harassment, so should females first try to sort the problem on their own by informing the respondent about her disinterest?
By- Sunitha Gupta
Ans: Very good question that is the exactly what awareness is all about. We train our employees how do you handle Sexual Harassment at workplace. The first step is to say “NO” a loud NO. And if the person is not backing off that is where you have to go to IC team. You can also go to IC team when you are confused for seeking advice but what we train them to step up and say do not do it. Because if you look up the survey that we have on our website many a times people don’t even say that they are uncomfortable. Like in one of our case study where this lady walked up to store she dint tell him that she is uncomfortable by his closeness. Maybe he would have backed off at that time but she dint say and he was quite enjoying it. Very importantly we have to train our employees to put our foot down and say NO.
15. My organization has branches across India, so is it necessary for every location to at least have one designated ICC member locally?
By- Krishnan M
Ans: It is great to have as per to law it is mandatory to have at every location with employees > 10. Though it is very difficult administratively to have a full IC in every small branch location. So, what I ask them is at least one senior member out of that location can be a part of your IC. Because that location if they have a question they should be an ambassador to whom we can walk up and resolve it rather than always making the question to head office IC.
So, I recommend that you can have a region wise split, like Western region, Northern region, Southern region, Eastern region, Central region so they make out their own section and figure out how they can handle.
16. Harassment and Sexual Harassment are two different types but one male employee feeling harassed by another male supervisor will it come under the ambit of IC?
By- Rohan Visah
Ans: Sexual Harassment will come under ambit of IC. Now this is male to male so depends on what kind of policy you have incorporated within the organization. Few organization I consult protect only women employees, but there are many organizations which are gender neutrals to protect their men also. First aspect is what does your policy says if it says they are protecting their men employee also then their will come under IC in order to avoid any discrimination between genders.
Second option is they have to check whether it is sexual harassment, there is a whole lot of confusion amongst employees as in what harassment is and what sexual harassment is. So, awareness program on what is sexual harassment should be done for all of the employees to help them clarify and identify. Anything related with Sexual Harassment should be managed by the IC anything without sexual Harassment should be managed by the workplace Harassment committee, if you have one or managed by the HR.
17. How do the IC respond to any complaints like what are the mind sets they should have as they are dealing with people?
By- Ritupurna Kurdu
Ans: Mindset definitely you have to be opened and unbiased. Are they matured, are they open because I have seen people who are in IC panel they pass such ridiculous comment to the victim or the respondent. So, they have to be sensitive about the comments and words used. They should not be sympathetic to either the victim or respondent, cry with the victim or respondent, but be empathetic, they shouldn’t be too off also. Many a time I see during the investigation one of the IC member will be checking his phone, hands crossed, body language like slouched on the chair all this is not acceptable. I mean if you are into an investigation with the victim or the respondent or the witness, the body language should be appropriate. There are many aspects that should be there.
18. I have been wondering that today with WhatsApp, friends take selfies all over the place. How does one ensure that these do not become reason for complaints once friendship goes sour?
Similarly, the Act against Divorce etc. is getting misused by many women to complain again the man and his family to put behind bars or to extract money–meaning false complaints. Whereas the intentions behind the legislation were genuine, but people have begun to misuse. How do you sort such cases out?
Ans: Each and every case has to be dealt with differently and based on the context. It is very rare for people to open up and raise complaints even when they are right to do so. And false complaints are still less. If you see a case of misuse in your organisation, then the right awareness and expectation needs to be set to your employees.
19. I’ve a few queries.
Q: Why wasn’t any action taken on the manager for not reporting his relationship (self-declared) with his subordinate?
Ans: If this is against the relationship policy defined in the organisation, then action for violating the policy can be taken.
Q: What happens when there is a case on a member/ chairman of IC? Or a case on a person of high position who’s above IC chairman?
Ans: That specific IC member will be removed from the committee. For part 2 of your question, the IC should do a fair and unbiased inquiry and should not in any way get influenced and hence the 3rd party in the IC plays a major role.
Q: What happened to the TVF case?
By Sourabh Khan
Ans: We are not part of this case and hence our knowledge is as good as what the media has been reporting.
20. We have a complaint from two of our team members against one of the department heads about his behavior at work. He has been calling them without relevant work, asking personal questions- mainly in one to one situations or where staff is less (One of the employees works in late hours shift). etc. What should be our approach. We’ve not yet discussed this with the department Head. Does this behavior amount to Sexual harassment? Please help.
By Anu Gaur
Ans:If the complaint is a written complaint which has impacted the victims, then it is a a valid case under SH. Please have the IC call the department head and inquire about the same. And recommendations needs to be given on the severity of the personal questions and the context. Also, we recommend a strong awareness to be created to all your employees.
21. Wanted to understand how do we handle to same sex SH cases? Do we give any special or specific attention to these cases?
By Prasad Shejwalkar
Ans: Such cases are to be handled like any other case and should be fair without any discrimination.
22. What steps can an organization take to help complainants differentiate between workplace harassment and sexual harassment? At times the line is very fine.
By Navin Joseph
Ans: Encourage the complaints to report whatever form of harassment, let it be the onus of the PoSH committee or the HR to differentiate the harassment form. If anything, unwelcome, Sexual in nature and impact on the victim is present, then it is a clear case of SH. A detailed awareness on this topic will also help the employees.