Author: Sushil Tayal
It is almost a decade since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into existence and over 25 yrs. for guidelines for POSH under Vishaka guidelines in 1997. We have not yet achieved its intended goal hence yet again Supreme Court of India has to issue strict orders (Aureliano Fernandes vs State Of Goa – on 12 May 2023) directing establishment for compliance in letter & spirit.
Supreme Court has pointed out strongly that “An improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the Statute and the Rules. It will be equally counterproductive to have an ill-prepared Committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service.”
The questions to self-reflect are:
- – Whether our IC members equipped to conduct fair enquiries?
- – Do they understand procedural justice/injustice and principles of natural justice, as it plays out in the inquiry proceedings, especially in cases of sexual harassment at the workplace, where so much stigma is associated?
My experience of interacting and training IC members over the last 20 yrs. tells me that many IC members do not adequately understand the law (given they do not have legal background) & their understanding of Natural Justice is very shallow. This Judgment elaborates the concept, its application, the nuances and provides deep insights to all involved in any enquiry and disciplinary proceedings.
Also pointed out that by the Supreme Court ”Being a victim of such a deplorable act not only dents the self-esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act.”
It underscores the importance of educating employees about the complaint process, inquiry procedures, potential punishments for offenders, and the consequences of lodging false or malicious complaints.
This Judgment is a MUST READ for all IC members and the Management Teams. In my view we need to act on these three areas:
1. Leadership Ownership: Unless leaders walk the talk for creating a safe & harassment-free inclusive workplace, all efforts shall remain lip service or mere compliance. Leaders must build the right culture and eco-system that promotes and sustains an environment of psychological safety and free from any stigma for alerting any undesirable behaviour.
2. Upskilling IC members: Organisations must continuously upskill their IC members for conducting a fair and legally compliant enquiry and also play an integral part in building awareness of all in the organisation about the subject. Their competence shall induce the confidence of employees at large for flagging any current or potential case of sexual harassment at the workplace.
3. Educating Employees: They play a critical role in preventing any harassment at the workplace. Employees must be trained not only on the provision of law & company policy but also to remove the stigma associated with sexual harassment at the workplace. They should be alert, sensitive and proactive in reporting the matter to the appropriate authority without fear to keep the workplace free every harassment.
We at Enabling World have been upskilling IC members to be effective in their roles and educating the IC members on landmark judgements referred to in this judgment.
I am confident this ruling will bring attention & focus on the issues and organisations will make adequate investments to educate IC members & employees about creating & keeping the workplace safe and delivering justice.
Sushil Tayal – Enabling World
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