Workplace harassment not to be shrugged off

As most companies in India return to the work-from-office model, increased on-site interactions make it imperative for employers to put in place robust mechanisms that effectively address workplace harassment. An employee’s misconduct often results in another becoming a victim and may be general workplace or sexual harassment. It is, therefore, essential for an employer to determine accurately the nature of the harassment and tackle it effectively in accordance with the law and internal policies.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (act), has codified the law on the prevention of sexual harassment at the workplace and has resulted in the majority of employers implementing necessary policies, establishing internal committees (IC), organising training and undertaking assessments to ensure employee awareness. However, the true test of the effectiveness of such measures is when a victim seeks justice for the harassment. Employers and ICs face practical challenges in such a situation.

Not all cases of harassment constitute sexual harassment. There must be critical analysis to determine if the particular instance is to be tackled by the IC under the act or by the employer under internal policies and procedures. It should be the IC that carries out this analysis to avoid contravening the act. If it is found that a complaint does not involve sexual harassment, the IC can refer it to the employer to deal with under internal policies and procedures.

The words of Lord Hewart that “justice must not only be done, but must also be seen to be done” have to be followed in letter and spirit. The adjudication of all workplace harassment cases should be undertaken by independent and impartial panels. Employers must scrupulously observe the requirement for adjudicators to be impartial and aim to dispel any prejudice, personal or institutional, real or apparent. Appointing an independent external enquiry officer in cases of non-sexual harassment and an experienced external member to the IC will go a long way in establishing the independent nature of an enquiry.

The act only permits sexual harassment complaints from or on behalf of an “aggrieved woman”. Most internal policies, however, now cover the harassment of men and transgenders based on principles of equality and non-discrimination. These fundamental rights are enshrined in articles 14, 15 and 21 of the Indian constitution. In such cases, employers must be aware that ICs are not statutorily empowered to investigate such cases and the matters must be expressly delegated to the IC under organisations’ internal policies. The process for handling such cases and the redress available must also be set out in writing as the act does not apply to such scenarios. Organisations should consider incorporating the policies in employee handbooks and contracts of employment.

While employers must handle every complaint of harassment in line with applicable laws and internal policies, they must also investigate them fairly and transparently to establish the facts. They will thus safeguard themselves from spurious allegations. There are increasing instances of disgruntled employees making harassment complaints as coercive tactics. In 2022, the Karnataka High Court heard a criminal case initiated by an employee of a leading Japanese engineering company. She alleged she was forced to resign and abused by superiors using sexually coloured language. The court held that the sexual harassment allegations were an afterthought motivated by revenge.

In 2023, the Supreme Court, while accepting that charges of harassment are easy to make and very difficult to rebut, held that “courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care should be taken to separate the chaff from the grain”. These cases are a reminder to employers and the ICs that they must ensure a one-size-fits-all approach is not adopted and that every step in the investigation is tailored to the facts and evidence presented.

While it is difficult for employers to eradicate workplace and sexual harassment, adopting these approaches will enable employers to deal with complaints as effectively and transparently as possible.

Anirudh Mukherjee is a partner and Pankaj Anil Arora is a principal associate at Kochhar & Co.