Analysis By Pinakesh Mukherjee

This is a very unique case of sexual harassment at workplace which can go wrong quite easily. There are some aspects to the case which can often confuse some of the most seasoned professionals.  In this case, Mala, the complainant, claims to have been sexually harassed by her colleague Aasman who contests the claim. Neither parties seem to have any evidence to substantiate their claims. In that case, as per the POSH (Prevention of Sexual Harassment against women at workplace) Act, the incident would need to be investigated. It also needs to be kept in mind that for any Internal Complaints Committee to accept a case, the interpretation needs to be as per the complainant’s version. What this means in this case is irrespective of the actual chain of events, and the committee or the HR team will have to first accept the complaint of Mala.

 

Areas of concern:

 

1. Mahindra’s action of dictating parts of the complaint seems to be a case of misplaced sense of employee advocacy.  The role of HR in such cases is to report matters as observed without any prejudice to the investigating committee and not take sides. An adroit HR professional would also ensure that all the stakeholders involved are appropriately informed in a timely manner.

2. Another area of concern is the manner in which Mahindra revealed the identity of the complainant. Normally, the identity is kept confidential to ensure safe and fair execution of appropriate action without any prejudice.

3. Past incidents prior to the sexual harassment report: It is mentioned that Mala, would at times, place her hands on Aasman’s shoulder while addressing a question to him. Aasman should have exercised caution early on to ensure that these incidents were not used against him at a later stage.

 

Review

 

While on the face of it, the case seems to be about one person’s version against another, the facts can possibly be established by tracking video footages of the area around the desks of Mala and Aasman. In today’s world of active corporate security, it is fair to assume that the work floors are under CCTV surveillance. While Mala claims that Aasman had deliberately touched her, Aasman’s version is that he had acted instinctively to ensure Mala’s safety. What also needs to be taken into consideration is that Mala had also tripped previously as well, and, was prevented from falling by Aasman.

The question that can therefore be raised, is whether Aasman harbour similar intent in the past? If yes, why was the incident not reported? It can also be argued that in the incident at the cafeteria, Aasman did not touch her inappropriately, and, hence was not reported.

 

In his defense, Aasman could highlight that Mala would touch him on his shoulder while addressing any query and also enquired about how her dresses looked on her. And, the latter point is to be definitely construed as sexual in nature. However, since Aasman did not report these incidents earlier, his case might be treated as vindictive in nature in response to the sexual harassment case filed by Mala.

 

In the unlikely event of the absence of any video footages, or any other concrete evidence, a polygraph test could be an option to be considered. A polygraph test is likely to reveal who is fabricating the facts and might help in decision making. It is also possible that one of the two parties involved might not agree to a polygraph test, in which case it becomes the responsibility of the employer to clearly articulate the purpose and importance of the test, refusing which, the investigation cannot proceed further. Polygraph tests to assess veracity of sexual harassment claims are probably rare in organisations, but it could be a possible option in this scenario to establish the facts scientifically.

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