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To create a safer and more inclusive work environment, organizations must support employees in addressing workplace harassment as they become aware of their rights.
India is the most populous country in the world, with more than 70% of the population being employed. With the growing population and workforce, it is very likely that every person in the employment sector (irrespective of their gender) has faced some form of harassment or the other, which could be in the form of biases, rude behaviour, or even sexual harassment. Our lawmakers never thought it was necessary to bring in a law to curb harassment at workplaces.
The nonchalant attitude of the government, in the first instance, forced a group of NGOs fighting for women’s rights to approach the Supreme Court in Vishaka v State of Rajasthan seeking directions to introduce a law to protect women from sexual harassment in the workplace.
Since the court could not have gone beyond the relief sought under the petition, the Supreme Court not only laid down the guidelines to protect women from being harassed at workplaces but also directed the Government to follow these guidelines until a law came into force.
In pursuance of the above guidelines, and also considering that women who form just 23% of the workforce faced discrimination in society as well as in workplaces, the Government finally enacted a law that prohibited, aimed towards the prevention and redressal of sexual harassment of women at workplaces in 2013 in the form of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (the “POSH Act”).
However, until today, several organizations remain non-compliant under the POSH Act. Some entities, especially SMEs, have not set up a committee and do not even have a policy in place. Some other companies, for the mere sake of complying with the POSH Act, have set up a policy and the Internal Committee (IC) as a compliance that is forgotten thereafter.
Very few companies are interested in actually changing the behaviour of their employees to ensure that the law is complied with not only in letter but also in spirit. Considering that those born in the 60s and 70s will soon be paving the way for those born in the 80s, 90s, and even 2000s, we need to understand that regular awareness programs on sexual harassment and its prevention need to be provided to employees.
These programs not only educate employees on the system being followed in the organization but also help the organization cope with the attitudes that different generations carry and understand.
It is the duty of every employer to provide a safe working environment to their female employees, and in doing so, it is essential that every organization has an IC formed to handle cases of sexual harassment. An IC is a body that receives complaints about acts of sexual harassment, inquires into the complaint in detail, and recommends to the employer the punishments to be given pursuant to the inquiry.
Forming an Internal Committee and sensitizing the employees on the POSH Act will definitely prove effective in avoiding unwanted and unaccepted behaviour in an organization and will also help in the effective punishment of the guilty.
Most sexual harassment cases go unreported due to either the fear of repercussions, or stigma or because the IC has not been set up to take the complaints. Section 26 of the POSH Act prescribes the following penalty for the employer for not setting up an Internal Committee:
The recent judgments of the courts in India certainly shed light on what will happen to the companies that do not comply with the POSH Act.
As recently as on 16.09.2019, in the case of Mrs. Aravinder Bagga vs. Local Complaints Committee, District Indore (Writ Petition No. 22314 of 2017), the High Court of Madhya Pradesh, Bench at Indore, passed a judgment relevant to the above. In this case, Ms. Anjali Singh Thakur, an employee at Medanta Super Specialty Hospital, was sexually harassed by Dr Gowrinath Mandiga, Medical Superintendent/ Manager of the hospital, and at that time, the hospital had not constituted an IC. Therefore, she went to the District Local Committee to make a complaint.
The District Local Committee of Indore found Dr. Gowrinath Mandiga guilty and in its Inquiry report asked for disciplinary proceedings to be carried out on him along with a penalty of INR 50,000 to be paid by the hospital for not constituting the IC. This order of the Local Committee was challenged by the hospital.
After the submission of evidence and arguments from both parties, the Hon’ble Judge of the High Court found that Ms. Anjali Singh Thakur was subjected to sexual harassment and that there was no IC set up by the hospital.
Ms. Anjali Singh Thakur was asked to be paid compensation to the tune of Rs. 25,00,000 for the pain, suffering, loss of reputation, emotional distress, and loss of salary, resulting in the deprivation of the right to live with dignity by the hospital, within eight weeks.
The hospital was further directed to pay a penalty of Rs. 50,000 due to the failure to set up the internal complaint’s committee within a period of four weeks.
In Original Petition No. 463 of 2012 before the Madras High Court, between Ms. G vs. Isg Novasoft Technologies Ltd., Ms. G was sexually harassed by a colleague, and at that point in time, the company had not set up an IC.
In his judgment, the Hon’ble judge of the Madras High Court held that the damage suffered by Ms. G due to the non-constitution of the committee was unquantifiable, and considering the status occupied by her, the position in which she was employed, and the opportunities that she had lost on account of non-constitution of the IC, she was to be given compensation of INR 1,68,00,000 by the company.
The courts have made it very clear that the compensation for non-compliance with the POSH Act will be severe. In the future, if organizations have to grapple with one serious behavioural situation at work, it will be instances of harassment. Employees are becoming aware of their rights, and women are no longer willing to be silent on issues of harassment, in such cases, it becomes the duty of the organization to support them.
Many companies, especially MSMEs, fear that educating employees on sexual harassment may cause awareness and that women may misuse it to their advantage. They also feel that their priorities are different, and they cannot be spending money on conducting awareness sessions for the employees. What the organizations fail to understand is that compliance under any law has to be given the same importance as the other.
These organizations, for the fear of penalty and reputation, when it comes to compliance under Income tax, GST, Companies Act, Provident Fund, etc., aim to be completely in compliance with such legislations because systems are in place and any violations under these legislations are easily tracked, and the errant entity is punished.
This should be the case with the POSH Act as well, in which the penalties are severe. Is it then advisable to be “pennywise and pound foolish”?
For reasons best known, 6 years after this Act came into effect, there is no one to track if organizations are complying with the provisions of this Act. Is the government waiting for more disasters to happen to ensure that the provisions of this law are complied with?
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