INTRODUCTION
A recent judgement of
the Indore High Court titled Arvinder Bagga v. Local Complaints Committee
W.P No. 22314/2017 dated 16.09.2019 (hereinafter “Arvinder Bagga”) has
brought to the spotlight the issue of employer obligation under the provisions
of the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and
Redressal) Act, 2013 and Rules thereunder (hereinafter “Act” and “Rules”
respectively). In the said judgement the employer (Medanta Super Speciality
Hospital, Indore) (“Hospital”) was, inter alia, directed to pay
to the complainant a sum of Rs. 25,00,000/- (Rupees Twenty Five Lakhs) towards
loss and damages occasioned to her on account of being subjected to sexual
harassment by a medical superintendent at the workplace. The High Court also
reprimanded the Managing Director of the employer for his inaction towards the
requests of the complainant (for protection and redressal of her grievance).
Additionally, the court also passed various remarks with respect to the alleged
non-constitution of the internal complaints committee at the Hospital (which is
the body tasked by the Act with the responsibility of conducting an
investigation of a claim of sexual harassment).
Critical evaluation of
the judgement in ArvinderBagga (which appears to suffer from various
infirmities) is not the objective of this article, which attempts to discuss
the aspect of ‘employer obligation’ under the Act.
THE INTERNAL COMMITTEES
One of the primary
responsibilities of an employer under the Act is to formulate an anti-sexual
harassment policy and constitute an internal committee to look into complaints
of sexual harassment. Courts have, time and again, emphasised on the need for
employers to have in place robust internal mechanisms to effectively tackle the
problem of sexual harassment at its inception stage.
Described briefly below are the essential aspects of the internal committee(s).
The Complaints Committees
The Act provides for
constitution of independent and impartial complaints committees for the purpose
of carrying out an investigation into a claim of sexual harassment, and make a
report thereon.
The Internal Complaints Committee
Every employer
employing more than 10 (ten) persons is mandated to constitute an internal
complaints committee (IC) to deal with a complaint of sexual harassment.
The role of the IC cannot be carried out by the management of the organisation
or by any other body constituted by it.
Normally an IC is
required to be constituted at every office of the workplace.
However, the above rule is not rigid or inflexible. In specific situations, a
single IC may cover more than one workplace.
Constitution of the ICC
An IC is required to
consist of the below mentioned members to be nominated by the employer. At
least 50% of the total members nominated to the IC shall be women:
a)
A
presiding officer (PO) who shall be a senior level woman at the
workplace. A PO can be nominated from other offices of the organisation in case
a certain workplace (of the organisation) does not a have senior level woman.
b)
At
least 2 (two) members from amongst the employees preferably committed to the
cause of women or who have experience in social work or have legal knowledge.
c)
1
(one) external member who may be from an NGO or an association committed to the
cause of women or a person familiar with the issues pertaining to sexual
harassment.
Tenure of the IC, Vacancy, Removal of Members et al
Every
member of the IC shall hold office for a maximum period of 3 (three) years from
the date of their nomination.
A
member of the IC may be removed by the employer in the following situations:
a)
he/she
contravenes their confidentiality obligation under the Act;
b)
he/she
has been convicted of any offence under applicable law or any inquiry is
pending against him/her;
c)
he/she
have been found guilty in any disciplinary proceedings or if any disciplinary
proceedings are pending against him/her;
d)
he/she
has abused her position as to render the continuance in the committee
prejudicial to public interest.
Any
vacancy on account of the above shall be filled up by a fresh nomination by the
employer. Separately, any casual vacancy created in the committee for any of
the following reasons shall also be filled up by a fresh nomination by the
employer: (i) death; (ii) resignation; or (iii) disqualification such as
conflict of interest between the member of the IC and the parties to the
complaint, the member of the IC being an accused, the complainant or a witness
in the complainant etc.
CONFIDENTIALITY
Complaints
relating to sexual harassment contain sensitive information and must be
carefully preserved. The Act upholds this concept and directs maintenance of
adequate confidentiality. Amongst others, the employer is mandated to ensure
confidentiality of the following:
a)
The
contents of the complaint (of sexual harassment);
b)
The
identity of the complainant, the accused and witnesses;
c)
The
information relating to the investigation;
d)
The
report of the IC; and
e)
Action
taken by the employer pursuant to the report of the IC.
SECONDARY VICTIMISATION OR SECONDARY HARASSMENT
In
the context of sexual harassment, every individual (offender) is responsible
for: (i) his own acts of sexual harassment; (ii) any retaliatory conduct or
victimisation; (iii) any act of causing, inducing, abetting or aiding sexual
harassment. However, the employer, in certain situations, may also be held
vicariously responsible for any act of sexual harassment taking place at the
workplace in case it fails to comply with the provisions of the Act.
Under the Act, an employer is under a bounden obligation to prevent creation or
proliferation of a sexualised environment at the workplace; and to promptly
respond to all issues pertaining to sexual harassment.
The
theory of secondary victimisation is premised on the assumption that inadequate
compliance with the provisions of the Act by the employer (or the IC in some
cases) may result in victimisation of the aggrieved woman. Simply stated, an
employer who creates, condones or fails to check a sexualised environment at
the workplace may be liable for secondary harassment.Additionally,
failure on the part of the employer to take necessary corrective/remedial
action on learning of the offending conduct may also result in sexual
harassment.
Employers Statutory Duties
Put
differently, an employer is required to take all necessary steps to prevent
sexual harassment from occurring at the workplace; and to take immediate
corrective action in case of its occurrence. The Act places the following
duties and responsibilities on the employer:
a)
Provide
a safe working environment at the workplace;
b)
Display
at a conspicuous place of the workplace, the penal consequences of indulging in
sexual harassment and the order constituting the IC (along with names and
contact coordinates of all IC members);
c)
Formulate
and disseminate a robust anti-sexual harassment policy at the workplace;
d)
Organise
periodic workshops and awareness programs for sensitising employees with the
provisions of the Act;
e)
Organise
periodic trainings for the members of the IC;
f)
Provide
all necessary facilities to the IC for dealing with a complaint of sexual
harassment;
g)
Assist
in securing attendance of the complainant and the accused before the IC;
h)
Provide
assistance to the complainant in case she chooses to file a complaint (relating
to the incident of sexual harassment) with the police authorities under the
provisions of the Indian Penal Code, 1860;
i)
Monitor
timely submission of report(s) by the IC.
PENALTY
The
Act provides the below mentioned penalties for non-compliance with the
provisions of the Act.
Fine
The Act stipulates
fine (to the tune of Rs. 50,000/-) on the employer for the following
violations:
a)
Failure
to constitute an IC.
b)
Failure
to take action on the report of the IC when the report holds person(s) guilty
of sexual harassment.
c)
Failure
to take action on the report of the IC when the report concludes that a
false/malicious complaint was preferred by the complainant or that any witness
in the inquiry has made a false statement or submitted false/misleading
documents.
d)
Failure
to render annual reports (as prescribed)
e)
Contravention
of (to abetment to contravene) the provisions of the Act.
Additionally,
the Act heightens the penalties in case of repeat offenders or recidivists. A
second contravention will double the punishment (mentioned above) and expose
the employer to the prospect of cancellation of its business licence or
registration.
CONCLUSION
A
takeaway from ArvinderBagga is that an employer’s negligence and
lassitude in relation to the issue of sexual harassment is what may give rise
to employer liability. Mere presence of grievance redressal procedure(s) may
not be sufficient. The veritable efforts (of the employer) may be required to
be examined. In AlphiChugh v. State of Haryana
an investigation was directed by the court against an employer to determine
whether the mechanisms adopted by it to check and curb sexual harassment were
adequate or not. The court further observed that it was obligatory for every
employer to evolve a specific mechanism to combat sexual harassment at the
workplace.
In order to evade liability under
the Act, an employer may be required to establish the following: (i) that it
was fully complaint with its obligations under the Act; (ii) that it exercised
reasonable care to prevent and promptly remedy the act of sexual harassment;
(iii) the complainant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer.
See Vidya Akhave v. Union
of India W.P. No. 796/2015 (04.10.2016, Bombay High Court).
See Aarti DugaramGavandi
v. Managing Director, Tata Metaliks, W.P. No. 8826 of 2004 (06.10.2008, Bombay
High Court). See also Gayatri Balaswamy v. ISG Novasoft Technologies
Ltd. (2014) 6 CTC 602.
See generally Jaya Jodate v.
RashtrasantTukoji Maharaj Nagpur University. W.P. 3449 of 2013 (13.06.2014,
Bombay High Court).
SeeGayatri Balaswamy v.
ISG Novasoft Technologies Ltd. (2014) 6 CTC 602.
The concept of
secondary harassment is somewhat akin to ‘negligence’. See Yamaguchi v.
Widnall109 F.3d. 1475 [1997].
See Puja Dubey v. Union
of India W.P. (C) No. 7916 of 2019 (19.07.2016, Delhi High Court). See
generally Clarinda D’ Souza v. McCann Erikson India (2003) 2 Mah LJ 373.
S. 19 of the
Act&R. 13 of the Rules.
Crl. Misc. No.
M-29141/2012 (19.09.2012, Punjab and Haryana High Court).
See generally Burlington Industries
(97-569) 123 F.3d 490 (7th Circuit, 1998); Bradley Miller v.
Kenworth of Dothan Inc. 277 F.3d 1269 (11th Circuit, 2002).
