OTHER LAWS PERTAINING TO WORKPLACE SEXUAL HARASSMENT: COMPANIES ACT 2013

This article is written by Prajwal Guleria of 8^th Semester of Lovely Professional University, an intern under Legal Vidhiya

Abstract

Sexual harassment in the workplace is a serious problem that can have a devastating impact on victims. Numerous legislation, such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), are in existence in India to safeguard workers against sexual harassment. The Companies Act, 2013, also plays a role in preventing sexual harassment it empowers workers and encourages an inclusive culture by introducing the provisions for an Internal Complaints Committee (ICC). The Act emphasises the significance of establishing a harassment-free workplace, even if it is not directly focused on sexual harassment. The Indian Penal Code (IPC), the Vishakha Guidelines, the Equal Remuneration Act, and the Protection of Children from Sexual Offences (POCSO) Act are among the other important legal frameworks. This all-encompassing strategy is to equip organizations with the means to stop and deal with sexual harassment at work, resulting in safer and more welcoming environments. It is important for employers to be aware of all of these laws and to take steps to comply with them in order to create a safe and respectful work environment for all employees.

Keywords

Sexual Harassment, Workplace, India, POSH Act, Companies Act, IPC, CrPC, Civil Rights Act

Introduction

Sexual harassment in the workplace is a pervasive issue that can have serious repercussions for both companies and people. Many legislative frameworks have been put in place to handle and prevent sexual harassment in the workplace, one of which being the Companies Act. A number of other regulations in addition to the Prevention of Sexual Harassment (POSH) Act bolsters the extensive legal framework around workplace sexual harassment.

The Companies Act and Workplace Sexual Harassment

The Companies Act, 2013, emphasizes corporate governance and sets standards for conducting business responsibly. While it does not explicitly address workplace sexual harassment, it indirectly promotes a safe working environment through certain provisions. These include:

• Duty of Care: It mandates directors to ensure company compliance with all applicable laws, including POSH. This incentivizes companies to implement POSH provisions and comply with its regulations.
• Internal Complaints Committees (ICCs): These are crucial under POSH for investigating complaints. Although not directly mandated by the Companies Act, their establishment is often linked to compliance considerations under POSH or other relevant laws.
• Annual Report Disclosure: Companies are required to disclose information about ICC composition and activities in their annual reports. This promotes transparency and accountability regarding efforts to address sexual harassment.
• Board of Directors Responsibility: The Act specifies that the Board of Directors must act in the best interests of the company and its stakeholders. This responsibility extends to ensuring compliance with applicable laws, including those related to workplace harassment.
• Corporate Social Responsibility (CSR): The Act mandates that certain companies spend a portion of their profits towards CSR activities. Promoting gender equality, creating safe work environments, and raising awareness about sexual harassment can be part of these CSR initiatives taken up by companies.
• Whistleblower Protection: The Companies Act encourages the establishment of whistleblower policies to protect individuals who report misconduct, including instances of sexual harassment. Section 177 establishes the mandatory requirement for companies to establish a vigil mechanism, incorporating a Whistleblower Policy. This provision encourages employees to report any instance of workplace harassment, ensuring the protection of their confidentiality and safeguarding against any adverse actions. Such policies create a mechanism for employees to report harassment without fear of retaliation.

Section 149 of the Companies Act, certain companies are required to appoint at least one-woman director. This provision aims to increase gender diversity and representation at senior levels, thereby fostering a more inclusive and equitable work environment.

Company Laws: A Stepping Stone, Not the Solution

• Limited Scope: Company laws mainly focus on corporate governance and financial disclosures. They lack the detailed framework and specific definitions of sexual harassment required for effective prevention and redressal.
• Lack of Clear Enforcement Mechanisms: Penalties for non-compliance with POSH provisions under company laws may be ambiguous or insufficient, leading to lax implementation.
• Focus on Compliance, Not Culture Change: Company laws primarily address legal compliance, not necessarily fostering a culture of zero tolerance and awareness within the organization.

Other Legal Frameworks Addressing Workplace Sexual Harassment

• Protection of Children from Sexual Offences (POCSO) Act, 2012: The POCSO Act is relevant when sexual harassment happens within an organisation that involves minors, despite its primary goal being the protection of children. To protect the wellbeing of their younger workers, employers must be aware of these regulations.
• Indian Penal Code: The IPC includes sections that criminalize specific acts related to sexual harassment Sections 354 (outrage of modesty), 376 (rape), 506 (criminal intimidation), and 509 (word, gesture, or act intended to insult the modesty of a woman) provide criminal remedies for acts constituting sexual harassment.
• Vishakha Guidelines (1997)[1]: Although not a statute, the 1997 rulings of the Indian Supreme Court provided the groundwork for the later passage of the POSH Act. The emphasis of these recommendations is on the employer’s duty to stop and deal with workplace sexual harassment.
• Equal Remuneration Act (1976): This law aims to provide equal compensation for same or equivalent labour performed by men and women. The statute indirectly aids in the prevention of workplace discrimination, including sexual harassment, by advancing gender equality in compensation.
• The Civil Rights Act, 1955: Although this Act was originally established to safeguard civil rights, it also covers discrimination based on gender. People who have experienced sexual harassment may be able to claim that it qualifies as sex discrimination and bring civil lawsuits to get monetary damages and injunctive remedies.
• The Factories Act,1948, and shops and Establishments Act: These industry-specific laws require safe working conditions for workers, including anti-sexual harassment measures. They give employers the authority to set up internal grievance procedures and punish violators.
• Maternity Benefits Act, 1961: While not directly addressing workplace sexual harassment, the Maternity Benefits Act aims to protect the rights and interests of female employees, including pregnant women. By providing mandatory maternity leave and other benefits, this act promotes gender equality and protects women from discrimination during pregnancy and childbirth. A supportive maternity benefits framework contributes to creating a safer and more inclusive workplace environment.

Suggestions

While existing laws provide avenues for legal redressal, their effectiveness hinges on swift reporting, thorough investigations, and access to legal support. Societal factors also play a crucial role:

1. Sensitization and awareness initiatives: It’s critical to provide employers and employees with training programmes that foster a zero-tolerance and respectful culture. These initiatives ought to aggressively involve men as allies and combat ingrained societal attitudes that support victim blaming.
2. Increasing the strength of complaint procedures: Internal Complaints Committees (ICCs) under POSH must to be unbiased, easily available, and staffed by individuals with the necessary training to manage delicate issues. Prioritising complainants’ support and maintaining confidentiality is necessary.
3. Empowering victims: Those who have experienced sexual harassment should have easy access to counselling and legal assistance. In order to promote reporting and guarantee that victims feel empowered to pursue justice, resources and support networks must be established.
4. Holding employers accountable: Strict enforcement procedures need to make sure that employers are held responsible for breaking POSH and other pertinent laws. Sanctions and penalties ought to be powerful disincentives against passivity or a deficient handling of complaints.

Need for a Separate Law: Why POSH was a Game Changer

Sexual harassment at work has long cast a shadow of insidiousness over workplaces everywhere, including India. Although there were legal channels for remedy provided by the Indian Penal Code (IPC) and the Civil Rights Act, their effectiveness in addressing the particular subtleties of workplace harassment was restricted. At this point, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) became a vital weapon created especially to tackle this intricate problem.

Limited Scope of Existing Laws

1. General Provisions: While covering offences such as sexual assault and obscenity, the IPC and other existing laws frequently lacked the precise structure required to address the particular nature of workplace harassment, which can range from subtle inappropriate remarks to forceful behaviour.
2. Lack of clarity on the Workplace Context: These more expansive legislation fall short in addressing the power dynamics that exist there, where victims may be reluctant to report harassment for fear of reprisals from coworkers or superiors.
3. Inadequate Procedural Framework: Victims of sexual harassment suffer additional pain as they are deterred from pursuing justice because of the current complaint procedures are frequently unwieldy, and lack the tact necessary to handle delicate cases.

POSH a Tailored Response

Acknowledging these constraints, India’s legal system achieved a major turning point in 2013 when the POSH Act was enacted. It provides a thorough framework to:

1. Define and outlaw particular types of sexual harassment in the workplace, such as unwanted advances, requests for sexual favours, and unfriendly work settings.
2. Mandate the creation of Internal Complaints Committees (ICCs) in order to give victims anonymous, easily accessible complaint channels.
3. Establish precise deadlines for complaint inquiry and resolution to guarantee prompt and efficient response.
4. Give ICCs the authority to suggest suitable punishments for offenders, such as job termination or warnings.
5. Encourage the development of an awareness-based culture by making employer and employee training programmes essential.

Best Practices for Preventing and Addressing Workplace Sexual Harassment

Preventing and addressing workplace sexual harassment requires a proactive approach from employers. Some best practices include establishing a strong ICC with diverse and trained members, conducting regular awareness programs on sexual harassment, promoting a zero-tolerance policy, and creating a safe and inclusive work environment. Employers should also provide support mechanisms for victims, such as counseling services and access to legal advice. It is crucial to foster a culture of respect, equality, and accountability within the organization, where employees feel empowered to report incidents and confident that appropriate action will be taken.

Conclusion

While the Companies Act does not directly address workplace sexual harassment, it plays a role in promoting corporate responsibility and governance, indirectly contributing to the creation of a safe work environment. Additionally, various other acts such as the Indian Penal Code, Code of Criminal Procedure, Equal Remuneration Act, Maternity Benefit Act, and Information Technology Act offer specific provisions to combat workplace harassment. By combining efforts through these legislations, India aims to create workplaces that are free from sexual harassment, providing a conducive and inclusive environment where employees feel respected and protected. Emphasizing compliance and awareness of these legislations is essential for organizations to uphold employees’ rights and foster a harmonious work culture.

References

1. https://margcompusoft.com/m/internal-complaints-committee-under-companies-act-2013/#:~:text=The%20Companies%20Act%20of%202013,safe%20and%20respectful%20work%20environment. Visited on 22-01-2024
2. https://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf visited on 23-01-2024
3. https://vakilsearch.com/posh-compliance visited on 24-01-2024
4. https://indianexpress.com/article/explained/explained-law/posh-act-sexual-harassment-workplace-8591018/ visited on 21-04-2024

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[1] Vishaka & Ors. v. State of Rajasthan & Ors, (1997) 6 SCC 241

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