Nehmat Kaur

| @Nehmat_K | March 25,2019

IN Part II of our Know Your Rights series on The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,  we discussed the procedure for establishing an Internal Complaints Committee and its responsibilities.

In this piece,  I critically examine these provisions in the 2013 Act to analyse the loopholes in this procedure and how it can impact the effective functioning of the committee.

Also Read: Sexual Harassment at Workplace: Part II | The procedure and issues in constitution of Internal Complaints Committee in a workplace under the Sexual Harassment Act

Section 4 of the 2013 Act provides for creation of an Internal Complaints Committee, and leaves the selection of its members up to the employer.  The purpose of the ICC is to be a self-regulatory process, an in-house mechanism, ensuring that there are no external costs or factors for the female employees when it comes to reporting an unsafe working environment.

The employer has the discretion to nominate these members with the only caveat being that the Presiding Officer of the committee has to be the senior-most female employee in the office.  There are at least two other members from the workplace and one independent member to be nominated by the employer to complete the formation of the ICC.

ICC not representative

The discretion given to the employer to nominate members of the ICC can at times lead to all the members being from one particular class in the workplace. In a workplace, there is usually an inherent hierarchy between posts that creates different classes of employees. Traditionally, there are managerial and supervisory roles allotted to a few employees, other employees that report to them, and more often than not, there is accompanying support staff. However, the 2013 Act does not mandate the employer to ensure that the members so nominated are representative of all the classes of employees.

It has to be borne in mind that the role of power and hierarchy at the workplace is what makes sexual harassment at workplace substantially different from sexual harassment outside such parameters. The employer has the ability, therefore, to select all internal members from the managerial posts, which may prove to be counter-productive as the trust reposed by the employees in this mechanism is already compromised.

Take for an example, a support staff wants to file a complaint against a senior level employee and all the members of the ICC happen to be of the same peer group professionally. It is easy to imagine an outcome where the senior level employee is of more value to the workplace and hence the complaint is dismissed as being not proved. It is also possible that the complainant is paid to leave the workplace so as to not let the reputation of the workplace be harmed in any way.

To avoid a situation such as the one mentioned above, the 2013 Act should provide for a system that ensures that the employer nominates persons from every level of employment in an organisation making it comfortable for a complainant to approach a member of the ICC if required. It is important that the employees repose faith and confidence in any form of grievance and justice forum. If the composition of the ICC is not done justiciably, the purpose of the Act is defeated, and the remedies provided to the aggrieved employee remain the same as before the 2013 Act.

No Liability

This issue may also stem from the fact that the employers are not liable for compensation to the complainant, or penalty for the actions of an employee, if the allegation of sexual harassment is proved. The 2013 Act, by not fixing a liability on the employer in case of sexual harassment claims in the workplace, does leave the provisions to be at the stage of mere compliance without any real and substantial incentive to the employer to ensure its effectiveness. The lack of such liability makes the legal duty of providing a sexual harassment free workplace only mere lip service to the mighty objectives hoped for by the law.

Also Read:  Sexual Harassment at Workplace: Part I | Introducing the 2013 Act, crucial definitions

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