Time to smell the coffee

Corporate India needs to up its compliance of prevention of the sexual harassment law in the workplace, both in letter and spirit, or face reputational and pecuniary damages

A senior marketing executive of a technology firm, who made a pitch to a human resource (HR) head of a mid-sized business house for sale of a training module to update employees on sexual harassment laws, was stumped for words, when the HR head - a lady - said: "Dissemination of such information may encourage some employees to take advantage of the law."

It has been two years since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has come into force. However, the awareness and compliance level of corporate India - beyond the large Indian corporate groups and MNCs in India - on prevention of the sexual harassment law has been low. "Compliance with this law still does not feature high on the list of priorities of smaller organisations. Such organisations still have a reactive approach to the subject, and are not doing enough to raise awareness amongst employees on this issue," said Atul Gupta, partner, Trilegal.

Corporate India's complacency to comply with the law, in letter and spirit, was reflected in the findings of a survey conducted around middle of last year by EY India. Nearly 31 per cent of the respondents were found not compliant with the Act, even after its enactment. Further, 35 per cent of the respondents said they were unaware of the penal clause of the law. The survey found that 44 per cent of the respondents' organisations did not display prominently the penal consequences, as mandated by the law.

Perhaps, the most disturbing anecdotal evidence about corporate India's nonchalant attitude was that 40 per cent of the respondents were yet to train their Internal Complaints Committee (ICC) members in the legal and procedural intricacies of conducting an enquiry. This assumes added significance as the Act vests the powers of a civil court to the ICC and its procedure. Legal experts point out that every piece of evidence discovered or collected during the investigation needs to be preserved and is open to scrutiny by the ICC, law enforcement agencies or the court of law. "We have seen ICC proceedings being challenged directly through writ petitions. The onus on ensuring that the ICC's proceedings are procedurally sound is significant," said Gupta.

Another challenge facing corporate houses in such situations is the difficulty in collecting evidence while investigating allegations of sexual harassment. "In most cases, the evidence is circumstantial in nature. Generally, such harassments occur in isolated areas, or without witnesses," points out Avik Biswas, partner, Induslaw. Another factor that affects the proceedings is the drain on the time of the ICC members, say lawyers. "We have seen organisations struggle with the timeliness under the Act due to unavailability of senior members owing to other work commitments," says Gupta. The law allows for conciliation between the complainant and the accused under the supervision of the ICC. Legal experts say firms prefer to opt for this route to resolve sexual harassment complaints to mitigate reputational damage to the organisation.

THE LEGAL DOS AND DON’TS FOR A COMPANY

All organisations must...

• Create an Internal Complaints Committee (ICC) for its  various offices
• Publish a well-drafted policy on prevention of sexual harassment that sets out the consequences of violation of the policy, as well as the ICC composition and contact information
• Hold regular workshops and awareness programs to sensitise employees about the Act, and train members of the ICC
• Create an environment that assures employees of confidentiality and non-retaliation
• File annual reports on cases of sexual harassment

Penalty for non-compliance

• The Act prescribes a monetary penalty of up to Rs 50,000 for any contravention of its provisions
• This could result in cancellation of the license to do business
• A person who breaches the confidentiality of the complaint can be fined Rs 5,000 by the employer

HR experts say the effectiveness of any anti-sexual harassment programme in an organisation depends on seriousness of the company to have workplace equality, and the awareness levels among employees. Clearly, the ball is in the court of the employer to ensure that women employees feel safe to report any complaints without the fear of victimisation.