POLICY ON COMBATING SEXUAL HARASSMENT AT WORK
(Version: 2 dated October 31, 2014)
INTRODUCTION
The main object of this Policy is to give practical guidance to all employees on the protection of the dignity of women and men at work. The aim of this Policy, therefore, is to ensure that sexual harassment does not occur; and if it does, appropriate procedures are readily available to effectively tackle the problem.
POLICY-STATEMENT
All employees have a right to be treated with dignity. Every employee is entitled to a working environment free of sexual harassment. The Management would not permit or condone sexual harassment at work. The Management would make every reasonable effort to ensure that no employee is subjected to sexual harassment. The Management assures that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and employees will be protected against victimization or retaliation for making or supporting a complaint of sexual harassment. The Management, therefore, stands committed to provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace. The penal consequences of sexual harassment are displayed at a conspicuous place in the workplace.
DEFINITION
Sexual harassment at workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of sexual harassment. Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature having the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment would constitute ‘sexual harassment’.
The Supreme Court in the year 1997 defined the term ‘sexual harassment’ with reference to working women in Vishaka v. State of Rajasthan as under:
“[S]exual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.”
Subsequently, the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 “to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment”. The Act defines “sexual harassment” as including any one or more of the following unwelcome acts or behaviour (whether directly or by implication):
(i) “physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature”.
While ordaining that no woman shall be subjected to sexual harassment at any workplace, the Act also provides that the following circumstances, “among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment”:
(i) “implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety.”
SOME COMMON FORMS
Some common forms of sexual harassment would include, inter alia:
∙ Physical harassment (for example, kissing, patting, pinching or touching in a sexual manner); ∙ Verbal Harassment (for example, unwelcome comments about a person’s sex or private life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person’s appearance or body);
∙ Gestural harassment (for example, sexually suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);
∙ Written or graphic harassment (for example, sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);
∙ Emotional harassment (for example, behaviour which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).
COMMUNICATION
It is the endeavour and practice of the Management to give its employees an early introduction to its policy on sexual harassment. The Management would take all requisite steps to ensure effective dissemination of this policy.
RESPONSIBILITIES
Managers and Supervisors
All employees have a responsibility to help create a working environment free from sexual harassment. However, managers and supervisors have a particular duty to ensure that sexual harassment does not occur in work areas for which they are responsible.
Employees, in general
Employees in general also have a clear role to play in helping to create a working environment free from sexual harassment. Employees can and should do so by ensuring that standards of conduct for themselves and for colleagues do not cause offence. They should also discourage sexual harassment and support victims of such conduct. Further, employees who are themselves victims of sexual harassment should tell the harasser that such behaviour is unwanted and unacceptable. Once the offender understands clearly that the behaviour is unwelcome, this may be enough to put an end to it. However, if the harasser still persists, recipients should immediately notify the Management and / or the officers concerned and / or invoke the complaints procedure as provided in this Policy.
MISCONDUCT
The Management shall treat commission of an act constituting sexual harassment by an employee as a disciplinary offence. Victimising or retaliating against an employee for bringing a complaint of sexual harassment in good faith shall also be treated as a disciplinary offence.
While endeavouring to protect employees from sexual harassment, the Management would also ensure that its employees are not subjected to unwarranted and malicious complaints of harassment. Complaints of sexual harassment should be in good faith. As such, a proven malicious complaint of sexual harassment or one made by the complainant despite knowing it to be false would also be treated as a disciplinary offence. Similarly, if the complainant produces any forged or misleading document or if a witness during the inquiry gives false evidence or produces any forged or misleading document, such act would also be treated as a disciplinary offence.
DISCIPLINARY ACTION
If the result of the investigation/ inquiry holds the alleged harasser guilty of an act constituting sexual harassment, the Management shall take appropriate disciplinary action against the harasser. The actual punishment imposed would be commensurate with the gravity of the misconduct and other relevant circumstances as per the dictates of law.
TRAINING
The Management recognizes the importance of training its employees, particularly supervisors and managers, so as to better equip them to effectively deal with cases or complaints of sexual harassment. The main objects of such training/ awareness programmes/ workshops would be to make the employees more sensitive to and aware of the problem of sexual harassment; to enable them take an objective and sensitive attitude to complaints of sexual harassment; impressing on them the need to maintain confidentiality; training them about their responsibility and the procedures they should follow on receiving a complaint of sexual harassment or on witnessing such conduct: and last but not least, to draw their attention to the dangers of exaggerated complaints and malicious claims. The Management would also organise orientation programmes for the members of the Internal Complaints Committee.
COMPLAINTS PROCEDURES FOR ‘AGGRIEVED WOMEN’
Definitions:
‘Aggrieved woman’
‘Aggrieved woman’ means a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent.
‘Respondent’
‘Respondent’ means a person against whom the aggrieved woman has made a complaint of sexual harassment.
‘Workplace’
‘Workplace’ includes any place visited by the employee arising out of or during the course of employment including transportation if provided by the Management for undertaking such journey.
‘Employee’
‘Employee’ means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
Special Complaints Procedures for ‘aggrieved women’
The Management has provided both for informal as well as formal procedures in this regard. Informal procedure
The obvious merit of this procedure is that lesser people are involved, which would help to maintain confidentiality. It is also less cumbersome and time consuming.
Recipients of sexual harassment should clearly explain to the perpetrator that the conduct in question is unwelcome and / or offensive to the recipient and / or makes the recipient uncomfortable and / or it interferes with the recipient’s work and, as such, the perpetrator should immediately cease such conduct. If the aggrieved woman finds it difficult or embarrassing to do this on her own, she may take the support of ‘Confidential Counsellors’ appointed by the Management. The Counsellor – who would be a woman – would endeavour to redress the grievances of the woman aggrieved employee without a formal enquiry or investigation. For this purpose the aggrieved woman may also take the assistance of the Human Resources Department of the Management. The Counsellor shall endeavour to resolve a complaint of sexual harassment through informal procedure within 7 days of the receipt of the
complaint. The Management shall notify the names of counsellors by way of an office order It may be noted that the Management’s order to be displayed at a conspicuous place in the workplace.
Formal procedure
It is clarified that it is not obligatory for an aggrieved woman to invoke the informal procedure; it is purely optional, and it would be open to her to invoke the formal procedure in the first instance itself, without resorting to the informal procedure.
Constitution of ‘Internal Complaints Committee’
The Management has constituted a Committee (‘Internal Complaints Committee’) in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Complaints Committee shall, at all times, be headed by a woman, who shall be known as ‘Presiding Officer’. There shall be at least two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. One member has been nominated from amongst non governmental organisations or associations committed to the cause of women of a person familiar with the issues relating to sexual harassment. At least one-half of the total members so nominated by the Management shall be women. The Presiding Officer and every member of the Internal Complaints Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may specified by the Management. It may be noted that the Management’s order constituting the Internal Complaints Committee shall always be displayed at a conspicuous place in the workplace.
Written complaint to the ‘Internal Complaints Committee’
To invoke the formal procedure the aggrieved woman shall give a written complaint against the respondent to the ‘Internal Complaints Committee’ established by the Management in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Such complaint shall be made within a period of three months from the date of incident and in case of series of incidents, within a period of three months from the date of the last incident. Where such complaint cannot be made in writing, the Presiding Officer or any member of the Complaints Committee shall render all reasonable assistance to the woman for making the complaint in writing. The Committee may, however, for reasons to be recorded in writing, extend the aforesaid time limit of three months by period not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the initial period of three months. Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 may make a complaint under this provision. . The said Rules as they exist currently provide as follows:
(i) Where the aggrieved women is unable to make a complaint on account of her physical incapacity, a complaint may be filed by –
(a) her relative of friend; or
(b) her co-worker; or
(c) an officer of the National Commission for Women or State Women’s Commission; or (d) any person who has knowledge of the incident, with the written consent of the aggrieved woman;
(ii) where the aggrieved women is unable to make a complaint on account of her mental incapacity, a complaint may be filed by-
(a) her relative or friend; or
(b) a special educator; or
(c) a qualified psychiatrist or psychologist; or
(d) the guardian or authority under whose care she is receiving treatment or care; or
(e) any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care;
(iii) Where the aggrieved woman for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent;
(iv) Where the aggrieved woman is dead, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir.
It may be also be noted that the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman to the respondent within a period of seven working days. The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents provided by the Complainant.
Conciliation
The Complaints Committee may, before initiating a formal inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement can be made a basis of conciliation. If such conciliation fructifies into a settlement, the Complaints Committee shall record the settlement so arrived and forward the same to the employer to take action as specified in the recommendation. The Complaints Committee shall provide copies of the settlement to the aggrieved woman and the respondent. Where such settlement is arrived at, no further inquiry shall be conducted by the Complaints Committee.
Inquiry
Except where conciliation fructifies into a settlement, in all cases where the respondent is an employee the Complaints Committee shall make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent. The Internal Committee shall also conduct the inquiry if the respondent fails to comply with any term or condition of the settlement. Where both the parties are employees, they shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice. The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself in the inquiry. The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee. In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer shall be present.
For the purposes of conducting the inquiry, the Internal Complaints Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of these matters: (a) summoning and enforcing the attendance of any person and examining him on oath;(b) requiring the discovery and production of documents; and (c) any other matter which may be prescribed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. The inquiry would be completed within a period of ninety days.
The Management would provide the necessary facilities to the Complaints Committee for dealing with the complaint and conducting an inquiry. The Management would also assist in securing the attendance of respondent and witnesses before the Internal Complaints Committee. The Management would make available such information to the Internal Complaints Committee as it may require having regard to the complaint made by the aggrieve woman.
Action during pendency of inquiry
During the pendency of an inquiry, on a written request made by the aggrieved woman, the Complaints Committee may recommend to the Management to (a) transfer the aggrieved woman or the respondent to any other
workplace; or (b) grant leave to the aggrieved woman up to a period of three months; or (c) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer; or (d) grant such other relief to the aggrieved woman as may be prescribed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. The Management would implement such recommendations and send the report of implementation to the Internal Complaints Committee.
Inquiry report
On completing the inquiry the Complaints Committee will provide a report of its findings to the Management within ten days from the date of completion of the inquiry. Copies of the report would also be supplied to the concerned parties. If the Complaints Committee concludes that the allegation against the respondent is not proved, it shall recommend to the Management that no action is required to be taken in the matter.
However, if the Committee concludes that the allegation against the respondent has been proved, it shall recommend to the Management:
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, after having regard to (a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman; (b) the loss in the career opportunity due to the incident of sexual harassment; (c) medical expenses incurred by the victim for physical or psychiatric treatment; (d) the income and financial status of the respondent; and (e) feasibility of such payment in lump sum or in instalments. However, if the employer is unable to make such deduction from the salary of the respondent due his being absent from duty or cessation of employment, the Complaints Committee may direct the respondent to pay such sum to the aggrieved woman. In case, however, the respondent fails to pay the aforesaid sum, the Complaints Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer notified by the appropriate Government for the district under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
(iii) The Management shall act upon the recommendation of the Complaints Committee within sixty days of the receipt thereof.
Punishment for false or malicious complaint and false evidence
(i) If Internal Complaints Committee concludes that the allegation against the respondent is malicious, or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or produced any forged or misleading document, it may recommend to the Management to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to her or him.
(ii) Similarly, if the Internal Complaints Committee concludes that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the Management or the employer of the witness, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013..
Prohibition of, and penalty for, publication or making known contents of complaint or inquiry proceedings
All employees should also note that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 prohibits the publication, communication, or making known to the public, press and media in any manner, the contents of the complaint made by the ‘aggrieved woman’ or the identity and addresses of the ‘aggrieved woman’, respondent and witnesses, as also any information relating to conciliation and inquiry proceedings, recommendations of the Internal Complaints Committee. However, information may be disseminated regarding the justice secured to any victim of sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses. Contravention of these provisions of confidentiality by any employees shall be treated as misconduct for which the Management would take appropriate disciplinary action against the delinquent employee.
Removal of Presiding Officer or Member of Internal Complaints Committee
If the Presiding Officer or any member of the Complaints Committee contravenes the aforesaid provisions of confidentiality; or is convicted for an offence, or an inquiry into an offence under any law for the time being in force is pending against him; or has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 .
Fairness to all concerned
Investigation or inquiry into complaints of sexual harassment would be conducted with due respect for the rights of both the complainant and the respondent. The entire process would be impartial and without any bias for or against any party. The respondent would be entitled to reasonable opportunity to rebut the charges. The entire procedure would conform to the requirements of natural justice. The aggrieved woman and the respondent shall have the right to be assisted and /or represented in the inquiry by a co-employee of their choice. It is made clear that neither of them shall be entitled to be represented/ assisted by any person who is not employed by the Management.
The Management stands committed to maintaining confidentiality to the extent reasonably possible. The Management will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto. To ensure confidentiality, the information obtained would be confined to the smallest group possible. The importance of confidentiality would be emphasised to the witnesses as well. Responsibility to maintain confidentiality would lie on the complainant also. The complainant, thus, would also become part of the confidentiality process and should not discuss the issue with other persons except where it is necessary for substantiating the complaint or otherwise to secure a fair investigation into the complaint or discussing the issue with the Counsellor or human resources department or the Complaints Committee. Employees involved in the investigation /inquiry may be required to sign a written undertaking agreeing to maintain confidentiality about the information they receive. Breach of confidentiality on the part of employees involved in the investigative process would render them liable for disciplinary action.
While it is important to maintain full confidentiality throughout the investigation/ inquiry, the respondent would be provided with all relevant details of the complaint made against him.
Private Conduct of Employees and Rights of Management
The Management would be competent to direct a respondent not to sexually harass an aggrieved woman even by way of a private conduct if such harassment can reasonably be said to be a consequence of the relationship of the parties as co-employees (i.e. it is employment related); and the harassment has had, and continues to have, substantial and adverse effects on workplace relations, workplace performance and/ or the efficient, equitable and proper conduct of the Management’s business because of the proximity of the harasser and the victim in the workplace. Disobedience of such direction by an employee shall be treated as an act of misconduct and, as such, render the delinquent employee liable for disciplinary action.
Protection from victimisation or retaliation
The Management assures that the aggrieved woman or her witnesses or Counsellor or other employees who support her would not be victimised or intimidated or retaliated against in any manner. If the respondent or any other employee indulges in such conduct of victimisation or retaliation, the Management would take appropriate disciplinary action against such delinquent employee.
Criminal Proceedings
The Management would provide assistance to the aggrieved woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force. The Management would also cause to initiate action under the Indian Penal Code or any other law for the time being in force against the perpetrator.
‘Third-Party Harassment’
The Management also stands committed to take appropriate preventive and remedial action to prevent sexual harassment by non-employees. Where sexual harassment occurs as a result of an act by any third party or outsider, the Management would take all steps necessary and reasonable to assist the victim in terms of support and preventive action.
The Management would cause to initiate action under the Indian Penal Code or any other law for the time being in force against such perpetrators. Further, in such cases, if the aggrieved woman so desires, the Management would cause to initiate action in the workplace at which the incident of sexual harassment took place.
In such cases the aggrieved woman should promptly report the sexual harassment to the Management so as to enable the Management to take appropriate action. Unless the aggrieved woman reports the harassment to the Management, the latter in no case shall be responsible or liable in this regard.
REVIEWING THE POLICY
The Management would periodically monitor, review and evaluate the working and efficacy of this policy.
By order of the Management
Surendra Kumar
Executive Director
ACKNOWLEDGMENT
I have received a copy of this policy of ATS Services Private Limited for combating sexual harassment at work. I fully understand the contents of this policy, which shall be binding on me.
[EMPLOYEE]
Date
Witness: