Policy Implementation Challenges- While the intent of the PoSH 2013, legislation has been lauded, implementation of the Act has created unique challenges for employers in India, with hurdles emerging in the form of day-to-day situations that the Act does not address. The key challenges that face employers in India in the implementation of the legislation and its rules are listed below.
Difference between ‘harassment’ and ‘sexual harassment’
The Act specifically provides for redressal of complaints of sexual harassment only. However, employers often receive complaints that claim to be about sexual harassment but actually are complaints of general harassment. Alternatively, there are complaints of general harassment filed with the employer that include elements of sexual harassment. One question that arises is how to deal with such complaints and whether they should be referred to the company’s Internal Complaints Committee (ICC) or if they can be dealt with by the employer in accordance with its internal processes for harassment or unethical conduct.
Gender-neutral policies
Determining social context – In the international context, employer policies against sexual harassment tend to be gender-neutral, affording protection to both men and women. However, the law in India extends protection from sexual harassment only to women, though the perpetrator could either be male or female. While nothing prevents an employer from adopting a gender-neutral policy on sexual harassment, it may be noted that in the Indian context power equations at the workplace and in society have been such that women are usually the victims of sexual harassment. Therefore, when drafting a gender-neutral policy, it would be important to ensure that the social context is taken into account when facing sexual harassment claims by men.
Composition of the ICC
The Act prescribes, in no uncertain terms, the qualifications and gender of the members that have to constitute an ICC. However, employers find that fulfilling the requirements on composition creates many issues, such as the ones highlighted below.
Multiple locations – Employers having offices in multiple locations across India often face the dilemma of whether enlisting a panel of ICC members (say, 4 to 10 members) from which the employer can choose—depending on the parties involved and the location of the hearing—will be in keeping with the letter of the Act.
Profile of ICC members – The identity and position of the members vis-a-vis the complainant and the perpetrator (whether in direct reporting line and seniority) is an important consideration when determining the right composition of the ICC to hear complaints of sexual harassment.
Appointment of foreigners or persons from group companies outside India – Employers are also appointing employees of group companies located outside India to be part of an ICC.
Further, such an appointment needs to be examined from the point of view of whether the person so appointed will necessarily have the social context in which sexual harassment has to be viewed and whether such employee will be sensitized to the social realities in India.
Senior women employees – Not all employers have women employees in senior positions. Such employers have to decide whether a woman employee who is not a ‘senior level’ person may be appointed to the ICC.
Standard of proof
Evidentiary requirements – The Act and the Rules do not provide any specific guidelines relating to what will qualify as evidence in a case of sexual harassment. Most instances of sexual harassment take place in private, which may not result in any written evidence or first-hand witnesses. The courts in India have held that the standard of proof that must be employed in domestic inquiries is in fact that of the preponderance of probabilities
The theory of preponderance of probabilities suggests that a fact can be said to be proved when the court either believes that it exists or considers its existence so probable that a prudent person ought, under the circumstances of a particular case, to act upon the supposition that it exists.
Courts in India have held that a disciplinary proceeding is not a criminal trial and, thus, the standard of proof required is that of the preponderance of probabilities and not proof beyond a reasonable doubt.
The character of the complainant – There are case laws, including foreign judgments, which emphasize that bringing up the past history or character of a woman is an attempt to leverage on prejudices and to make proceedings uncomfortable for the complainant, to the extent of her abandoning, withdrawing or settling the complaint.
The motive of the accused – In a bid to protect themselves, perpetrators often bring up the lack of motive on their part to engage in sexual harassment. It should be noted that the Act does not require intent or motive to be proved for a case of sexual harassment.
Anonymous Complaints
The Act and Rules do not contain any provision to address anonymous complaints and, from a strict reading of the Act and the Rules, it appears that a complaint should be made by the victim herself or any other person she authorizes. However, employers often find that complaints are made anonymously or that the complainant does not want to be identified.
In such cases, going strictly by the letter of the law, an employer may be able to take the stance that there is no obligation to proceed further with the complaint. However, it is important to keep in mind that the intent behind the legislation is to provide a workplace free from sexual harassment. Based on this, the question that arises is whether an ICC can take suo moto action against information regarding sexually harassing behaviour that it is informed of.
Conduct of meetings
Videoconference – It is often difficult to ensure the physical attendance of all members of an ICC for any or all hearings. Employers resort to virtual means, such as videoconferencing, to convene meetings of an ICC. With one or more members of an ICC attending through videoconference, the meetings can be conducted with ease. While the Act is silent on convening of ICC meetings through videoconferencing, the frequency and circumstances of holding a meeting of an ICC where members can attend via videoconference must be analyzed, keeping in mind the sensitivity and time pressures in concluding the process.
Absence of external member – On various instances, an ICC may face a situation whereby the external member of the ICC is unable to attend the hearing. Therefore, often in urgent situations, an ICC is left with the sole option of conducting the meeting without the external member, not knowing whether it should go ahead with the meeting. The Act does not address this issue specifically.
Lodging of FIR and the company’s role
There is a growing trend among complainants to go ahead and file a first-information-report (FIR) against the perpetrator simultaneously with lodging a complaint with the employer. If faced with such a situation, the employer must tread carefully in its conduct towards the perpetrator (also an employee of the company). The actions of the employer must be measured so as to not depict any bias in favor of the perpetrator-employee.
Annual Reporting
The employer is under an obligation to submit an annual report on redressal of complaints of sexual harassment to such authorities as may be notified under the Act. Many states have not issued a notification determining the authority. However, to ensure compliance with the provisions of the Act, some employers have filed the annual report with the labour department (jurisdictional labor commissioner). This action must be weighed with the obligation of confidentiality imposed on the employer for information pertaining to complaints of sexual harassment. Submitting information on sexual harassment complaints to authorities which do not have the jurisdiction for such matters may actually be in breach of confidentiality obligations.
Therefore, as an alternative, an employer may submit a letter to the relevant ministry informing it that the annual report has been prepared and that the employer is awaiting notification on the authority to which the report must be submitted.
When dealing with these often practical issues where full compliance with the letter of the legislation may either not be possible or may result in a situation where the intent of the act is not being served, it would be important for each situation to be analyzed keeping the intent of the legislature in mind (i.e., a workplace free from sexual harassment) and ensuring that the principles of natural justice are served and no person condemned without giving him a fair hearing.
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