Sexual harassment at workplace finds a prominent place in most of the discussions in the corporate world. From a statutory perspective, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“PoSH Act”) read along with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013 (“PoSH Rules”) provides for protection of female employees at the workplace. It defines sexual harassment and places a duty on the employer to prevent and punish any act of sexual harassment and provide a safe working environment at the workplace. The PoSH Act read with the PoSH Rules enumerates the duties of the employer which inter alia includes formulating a policy against sexual harassment and constituting an Internal Committee (“IC”) in an establishment with more than 10 (ten) employees. A policy for prevention of sexual harassment should be robust and well drafted with an aim to promote a healthy and safe working environment at workplace.

Key considerations to be kept in mind while formulating the prevention of sexual harassment policy

Definitions and illustrations

The PoSH Act, which is applicable to all establishments across sectors, provides for protection of employees on the rolls of the establishment as well as contract labourers, volunteers and apprentices. Since sexual harassment is a subjective experience, while framing the policy, illustrative definitions of relevant terms such as employer, employee, workplace and what constitutes an act of sexual harassment should be provided.

Procedure to file a complaint and the authority before which it is to be filed

Since the PoSH Act and PoSH Rules do not prescribe a format in which the complaint is to be filed, the policy document can provide a sample format with the required fields. It must also mention the details (name, email and telephone number), designation and qualification of the members of the IC, and the timeline for hearing the complaints of sexual harassment. This is to ensure that the employees are aware to whom a complaint of sexual harassment should be made. Notwithstanding the above procedure, the IC should also provide an opportunity to the aggrieved female employee and the accused to settle the matter through conciliation (before proceeding with the inquiry), so long as no monetary settlement is made as a basis of conciliation.

Redressal process

The policy should contain details of mechanisms available to the employees. It must also contain a list of interim relief such as transfer to another workplace or grant of leave that may be provided to the aggrieved woman during the pendency of the inquiry. If the allegations against the accused is proved, then the employer may in addition to taking action for sexual harassment as misconduct in accordance with the service rules of the establishment / PoSH Rules, also deduct an appropriate sum of money from the salary of the accused to be paid to the aggrieved employee. The policy should also set out the rights and duties of the members of the IC in conducting the inquiry.  It must also clearly state that the parties will be provided a fair chance to be heard during the investigation and that neither parties will be allowed to be represented by a lawyer at any stage during the inquiry.

Confidentiality / prohibition of publication

To ensure that women come forward to report, and, not supress instances of sexual harassment, the policy must clearly state that the contents of the complaint, identity and address of the complainant, accused, witnesses, and any information relating to inquiry proceedings shall not be published, communicated or made known to the public, press and media. However, as an exception to this rule, the policy may state that an employer can disseminate information regarding justice secured without disclosure of name, address or any other details of the parties involved, to prevent occurrences of such acts in future.

Protection to complainant, punishment for false or malicious complaint

The employer must ensure that the policy clearly mentions that no employee who brings forward a complaint of sexual harassment is subject to any form of reprisal. It may be set out that the aggrieved party or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. Further, it should be set out that an employee who makes a false or malicious complaint of sexual harassment shall be punished in accordance with the provisions of the PoSH Act read with the PoSH Rules.

Formulating a gender-neutral policy

While the PoSH Act allows for complaints of sexual harassment to be filed by a female employee against a male or female employee, it is not gender neutral to the extent that it only provides for protection of females from sexual harassment. Male employees do not have the option of filing a complaint against a male / female employee under the PoSH Act.

However, disciplinary policy framed by the employer can provide for redressal of complaints of sexual harassment filed by male employees as well. If proven, any act against the accused may be treated as misconduct and disciplinary action may accordingly be taken in accordance with the disciplinary policy of the establishment. Several organisations in India have incorporated a gender-neutral prevention of sexual harassment policy to ensure better human resource management.

Conclusion

While framing the policy, it is important to also incorporate global norms and good practices to prevent sexual harassment of either sexes. All the employees, whether permanent or temporary, should be aware of the contents of the policy and it should be easily accessible. The employer should conduct periodic seminars and conferences to generate awareness on issues and legal framework concerning sexual harassment at workplace, not only for employees but also IC members.