Vishal Kedia, Founder & Director, Complykaro informs that organisations need to take The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 very seriously and non-compliance with it can invite trouble for the management, including criminal prosecution
Sexual harassment at workplace can blow into a major HR issue. Many women face sexual harassment at workplace. It could come in any form from indecent proposals, jokes, innuendos, ogling, inappropriate remarks, pictures, text messages and MMS. Women do not complain fearing job loss and the stigma of being a ‘nasty cribber.’ Some organisations consider this harmless and refuse to recognise the difference between a compliment and harassment.
These incidents may lead to a cycle of depression, loss of morale and motivation. It can cause under-performance and absenteeism; all of which contributes to a hostile work environment. Aggrieved women feel insecure and quit jobs and organisations lose trained employees while the time and resources spent on training simply go waste.
To tackle this menace, the Government enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on December 9, 2013, but unfortunately most organisations do not seem to be aware of this law.
Organisations, however, can no longer dismiss workplace sexual harassment with a ‘Chalta Hai’ attitude. This law is mandatory for every organisation whether they have women employees or not. In fact, the Maharashtra government has already amended their Shop & Establishment and Factory Rules mandating disclosures regarding compliance and incidences of sexual harassment in their annual submissions.
The Indian pharma market is third largest in terms of volume and thirteen largest in terms of value, as per a pharmaceuticals sector analysis report by Equity Master. As per Kiran Mazumdar Shaw of Biocon, the doyenne of the Indian pharma sector, over 20-30 per cent of the total workforce now is female but the manufacturing and marketing functions continue to be male-dominated. Medical Sales Representatives (also known as MR, ABM, and PSR) are responsible for the promotion of products among physicians, hospitals and pharmacies and they are mostly males.
Medical Sales Representatives whether on payroll or otherwise are considered employees of the organization for the purpose of this Act. The aggrieved women can be a doctor, a female patient waiting for her turn in a dispensary or hospital, customer or vendor and as long as she alleges that an employee, Medical Sales Representative, etc. whilst performing their duty sexually harassed her whether within office premises or outside, you (as the employer) are responsible for providing assistance and redressal of such complaints.
Every organisation i.e. public limited company, private limited company, limited liability partnership, partnership firms, association, society, trust, proprietorship, NGO, etc. irrespective of size and number of employees has to comply with the said Act.
Failure to comply with the law could lead to hefty penalties, imprisonment and even closure of business. In fact a company in Chennai, where a woman complained of sexual harassment, was fined Rs 1.68 crores for its failure to comply with the law.
The law is clear. Non-compliance with the law can invite trouble for the management, from fines to shutting down of businesses. They even face charges of abettment of the crime and criminal prosecution, as well.
Further compliance with the said Act needs to be reported in the Annual Report to be filed by the organisations and where no such annual report needs to be prepared; the organisation has to file a report with the district officer each year. The law provides for penalty up to Rs 50,000 for such non-disclosure and double the penalty and closure of business on successive defaults. In fact, a few listed companies like Cipla had complied with such disclosure requirements in their Annual Report for year ending March 31, 2014.
Law mandates that each organisation has to formulate an Anti-Sexual Harassment Policy and put up posters within their premises highlighting penal consequences of sexual harassment. Where the organisations employ 10 or more workers as a whole, the organisation has to mandatorily constitute an Internal Complaints Committee (ICC) at each location to redress complaints. The Committee is headed by a senior women employee apart from minimum two other employee members and one external representative who may be an NGO member or an Advocate. Minimum 50 per cent of the said members must necessarily be women.
In case of organisations which employ up to nine workers or where the complaint is against the senior management / business owners, such complaints are heard and decided by the Local Complaints Committee (LCC) constituted in each district. Hence, a redressal forum has been provided with respect to every organisation, big or small.
All employees including medical sales representatives of the organisation must necessarily undergo sensitisation training each year as the emphasis of the law is prevention of instances of sexual harassment.
It is pertinent to note that it is not the intention of the harasser which matters but the impact of such incidents on the aggrieved woman. Hence even a single instance of a WhatsApp forward of an indecent joke or picture can trigger a complaint.
The incident must be perceived as unwelcome by the aggrieved woman, irrespective of its intent. Hence, what may be sexual harassment in a normal situation may not be construed as sexual harassment in a consensual and romantic relationship. The simple mantra is that in case of doubt err on the side of caution and avoid any behaviour which can be construed otherwise.
Even the ICC members need to undergo skill building training as they are a fact finding body which needs to adhere to principles of natural justice with powers of the civil court whilst hearing and deciding the complaint. Further recommendations of the ICC are challengeable before the Industrial Tribunal.
In their annual report to be submitted to the organisation and district officer, the ICC has to disclose the training and sensitisation programmes organised by the organisation during the year amongst other facts.
By complying with the said law, management of organisations can shield themselves from any legal consequences and ensure that prompt remedial action is taken against the perpetrator i.e. accused in case of genuine complaints and the complainant in case of false and malicious complaints.
Even the Union Minister for Women, Maneka Gandhi admitted in Rajya Sabha recently that most government offices and 90 per cent of private firms have not complied with the law. She has issued a stern warning to India Inc to comply with the said law or face severe consequences.
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