A look at the judicial interpretation being adopted by courts in cases related to sexual harassment at the workplace
Sexual harassment at the workplace remains a highly sensitive
issue despite the POSH (Prevention of Sexual Harassment) Act of 2013 establishing clear guidelines. India’s law on prevention of sexual harassment of women at the workplace was enacted in 2013, much before the #MeToo movement. This law was widely applauded by the employee community as the need of the hour and now that it is nearing its fifth anniversary, the courts in India have started interpreting the provisions of the law keeping in mind the broader objectives that it seeks to achieve.
Being a first of its kind act, the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) led to an increased awareness on the dos and don’ts in terms of workplace conduct. The media also played a critical role in spreading awareness besides bringing into limelight several startling incidents of sexual harassment at the workplace. However, despite the awareness and the measures being taken by the government to ensure effective implementation of the law, sexual harassment at the workplace remains a highly sensitive issue. From running a reputational risk to huge legal troubles, the road is not easy for employers who are slapped with sexual harassment cases.
This article seeks to provide in-house counsels and HR practitioners due perspective on the judicial interpretation being adopted by the courts in such matters.
What is ‘sexual harassment’?
As per the High Court of Delhi, in order that an act of ‘physical contact’ to be constituted as ‘sexual harassment’, it should have the colour of an ‘unwelcome sexually-determined behaviour’. A mere accidental act of physical contact, even though unwelcomed, would not amount to sexual harassment. In a case before the High Court of Kerala, it was observed that although the language used by an officer in his report regarding an event organised by a junior female colleague was inappropriate, the same did not amount to ‘sexual harassment’. This was because there was no allegation of a promise, threat or creation of an offensive or hostile work environment for the female employee.
What constitutes ‘workplace’?
The definition of ‘workplace’ covers within its scope, places visited by employees during employment, or reasons arising out of employment including transportation provided by the employer for commuting to and from the place of employment.
In a case where a female employee had alleged sexual harassment by a colleague during an outstation visit to Hyderabad, the High Court of Delhi upheld the employer’s decision to terminate the employment of the accused based on the recommendations of the Internal Committee (IC).
The High Court of Bombay pointed out that the definition of ‘workplace’ under the POSH Act is inclusive and deliberately kept wide in order to ensure that any area where women may be subject to sexual harassment is not left unattended or unprovoked for.
This illustrates the intention of the legislature to provide protection and prevention at all possible workplaces where, either the aggrieved woman works or may visit in connection with her duty or the place where the respondent is at work.
How should the IC be constituted?
While examining various aspects in relation to the composition and constitution of the IC, courts have taken the certain views – wherein the employer was unable to demonstrate that the members appointed from amongst the employees fulfilled the requirements under the POSH Act. In this case, the High Court of Bombay directed the employer to re-constitute the IC, conduct a fresh inquiry and submit its report afresh.
The Rajasthan High Court, in a case, held that an employer must nominate two members from amongst employees ‘preferably’ committed to the cause of women or who have the experience in social work or possess legal knowledge. The court opined that given the use of the term ‘preferably’, it cannot be construed that any person having no legal knowledge cannot be appointed as an IC member.
Also, the mere fact that the Presiding Officer of an IC is lower in rank than the accused does not invalidate the IC constitution, because accepting such a contention would mean that the composition and constitution of the IC will always be dependent on the rank of the person against whom such complaint is to be examined.
The High Court of Delhi opined that the external member to the IC should be a person associated with a non-governmental organization (NGO) or an association committed to the cause of women or a person familiar with the issues relating to sexual harassment.
In another case, the employer had appointed a labour lawyer as the external member on the IC and was unable to demonstrate that the external member was familiar with sexual harassment issues.
What powers does the IC possess?
As per the High Court of Delhi, the IC has the power to extend the time limit for filing a complaint by three months, i.e. up to a total of six months from the date when the incident took place by recording reasons in writing if it is satisfied that certain circumstances prevented the complainant from filing the complaint earlier.
The High Court of Delhi also confirmed the IC’s power to enforce the attendance of any person as per the provisions of the POSH Act. The same court clarified that the petitioner has the right to approach the IC for immediate protection and the IC is empowered to grant interim relief if it deems fit.
The High Court of Bombay held that where an inquiry has been conducted by an IC after giving adequate opportunity to all the parties and the IC has concluded, then merely because two views are possible, the court is not expected to re-appreciate the evidence and come to a different conclusion than the one which has been arrived at by the IC.
How should the complaint be filed?
The High Court of Delhi held that a complaint cannot be rejected by the IC merely on the grounds that the complainant had delayed in filing the complaint. In this case, the allegations of the complainant were clearly supported by the statements of several other witnesses who corroborated that the accused had indulged in similar conduct with them as well.
The Rajasthan High Court held that an aggrieved woman can file a complaint with the IC without having to submit the complaint in person. The complaint can be sent to the IC through another person or by any other media, the main point being that it should be received by the IC.
How should the inquiry proceedings be conducted?
The High Court of Delhi ruled that if the employer believes that an allegation of bias is true, then a new IC needs to be formed and the proceedings should start afresh.
With respect to adhering to the principles of natural justice, the High Court of Delhi pointed out that in the enquiry proceedings, strict rules of evidence are not required to be followed. The IC has the flexibility to adopt its own procedure in conformity with the principles of natural justice.
The High Court of Kerala pointed out that the inquiry as per the POSH Act is supposed to be a full-fledged enquiry, similar to a disciplinary inquiry in cases of misconduct. The Rajasthan High Court observed that the POSH Act and the rules enable a three-member IC to conduct the inquiry so long as the Presiding Officer is present. Therefore, an inquiry report does not stand vitiated if not less than three members had conducted the inquiry. The High Court of Delhi reiterated that the findings of an IC should not be ignored on vague and general grounds.
From an HR perspective, it is critical for employers to set the right precedent for its employees so that the morale and work ethics at the workplace is not adversely affected.
Formulation of a comprehensive and efficacious mechanism preventing sexual harassment should be on the priority list for every CEO
