Why Indian Companies Must Review Their Anti-Sexual Harassment Policy

Written by: Suruchi Kumar

In light of this unprecedented situation created by Covid-19, we have seen a mass shift of workforce in service sector to the confines of their homes, where work still continues.

It is undeniable that if your employee is working from home, s/he is still protected under laws and has to continue to abide by the rules and regulations of the company.

There is no reason for any employee or employer to flout such laws and/or rules including the mandatory policy formulated to prevent and redress complaints of sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and rules framed thereunder (“PoSH Law”).

Please see our blog post here on PoSH Law applying when an employee is working from home. The important question at this stage is whether your PoSH policy is robust enough to cover such a work from home (WFH) or a remote working employee situation too, in all likelihood, the answer is; No, it does not.

We had written a post in 2018 on essential ingredients and guidelines on drafting an Anti-Sexual Harassment policy, but we believe that it is time to revisit your PoSH Policy and assess its workability today.

Following are 7 key elements to take a re-look in your PoSH Policy:

1. Applicability – Women Only Or Gender-Neutral?

Despite the law being applicable to only women, there is no denying that other genders too are victims of sexual harassment and need protection. Further, with the growth of MNC culture, increase in diversity and inclusive approach and global policies of such companies, there is no reason as to why this PoSH Policy should be restricted to only women.

Ideally, such policy should therefore be gender-neutral in nature and cover all employees without any regard to their gender. With the enactment of the Transgender Persons (Protection of Rights) Act, 2019, the need to ensure a trans-person is not discriminated against has become crucial.

While this new law does not specifically make PoSH Law applicable to trans-persons, it does however provide penalty in case sexual abuse of a trans-person. Therefore, if sexual harassment/abuse has happened at a workplace, the internal committee (IC) of the company may take up the complaint under PoSH Law. Sensitisation of employees and training of members of the IC to handle such complaints from genders other than women should be done and also carve out a separate procedure, if required

2. Coverage – Employees Only? No!

The PoSH Policy should clarify that all regular, temporary, ad-hoc, daily wage employees, employees hired through contractors/agencies, volunteers, interns, probationers, trainees, apprentices and any other kind of employee working in the organisation are covered under the PoSH Policy and is required to abide by the same.

These days, given the far reach of an organisation, employees are working out of their homes or in remote locations on contract basis. These employees are also covered under the PoSH Law.

Further, it is not only restricted to your employees; any clients, visitors or vendors are protected under the policy and they can file complaints against an employee of the company if they face any instances of sexual harassment.

3. Outline Your ‘Workplace’ – It’s Beyond Your Desk

The PoSH policy should clearly outline what is ‘workplace’. A workplace these days is not just the four walls of your office. It has moved beyond the cubicles and cabins. A workplace would cover the compound of the establishment and any facilities therein (such as parking lots and cafes in the compound).

A workplace would cover visiting client sites including the transportation to make such visits be it a car, train or an airplane. A workplace would cover any parties attended for work. Any work done or interaction with fellow employee or third-party on electronic platforms.

Last but not the least, a workplace would cover ‘home or dwelling place’. Therefore, if an employee is working from home, such home has now become his/her workplace and protection from sexual harassment extends to such workplace.

If an instance of ‘sexual harassment’ occurs on e-mail by a client/fellow colleague/vendor, when the employee is working from home, this employee is well within his/her rights to file a complaint of sexual harassment with the IC.

A company may also append a separate WFH/Remote Working Conduct Policy. These policies can help align a companies’ guidelines of dos and donts for employees which are not in sight.

4. Million $ Question – What Is ‘Sexual Harassment’?

The most crucial part of an anti-sexual harassment policy is the definition of ‘sexual harassment’. Sexual harassment is any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated. It can involve one or more incidents and actions constituting harassment may be physical, verbal and nonverbal. This creates an environment which is hostile, intimidating or humiliating for the recipient. This can happen offline or online.

With workforce today driven indoors, clients/fellow colleagues/vendors may take liberties to harass an employee via phone, e-mail or social media platforms believing it to be harmless. The PoSH Policy should be updated to ensure that any passing remark or advance of sexual nature on electronic medium is still sexual harassment even in WFH situation.

5. Complaint Procedure – How Should A Complaint Be Filed?

The law is clear that a complaint has to be filed in writing with IC members. However, the policy may allow for a different mode of making a complaint (telephonic, verbal or over e-mail). As employees are now working from home, such complaints can come over e-mail and will be considered as formal written complaints to kick-off the procedure.

6. Complaint Procedure – How Long Will This Process Take?

At some point all disputes must come to end and the PoSH Law adheres to this by providing a strict timeframe for investigating into a complaint. It gives a timeline for filing of a complaint, timeline for forwarding the complaint to respondent, timeline for receiving a reply from the respondent, timeline for investigation and preparing a report and even the time for employer/management to take action.

For clarity of all stakeholders, the PoSH Policy should mention timeframe of the complaint process in a format quick and easy to understand – We have seen tables or flow charts help the most in understanding timelines. This timeframe has to be adhered to even if the complaint has been filed by an employee working from home or in remote location. Investigation can continue via video conferencing or phone and recordings of it be maintained. The requirement for quorum still continues to subsist.

7. Our Policy Is Complete – Let’s Keep It Aside Now, No!

Periodic assessment and monitoring the implementation of a policy is a good housekeeping practice to ensure the policy is up-to date with changing legal and cultural scenarios and in turn fulfilling its purpose. The policy may mandate an annual external-audit regarding the performance of the ICC, number of cases received by it and the success with which it has disposed of cases.

The policy must also state evaluation through other means, including questionnaires completed by employees and feedback from aggrieved employees. On the basis of this audit, the company may evaluate the effectiveness of the policy and the complaints procedure.

With the advancement of technology and maintenance of records electronically, a good housekeeping practice would be to post everything pertaining to compliance under PoSH Law such as statutory notices, policies and details of the IC on the intranet portal of the company. This would be in addition to the statutory notices displayed and hard copies maintained at the office premises. Following this practice will enable any employee to access data from anywhere they are present for work.

About the author: Suruchi Kumar is a Labour Law practitioner and works as a consultant with Ungender Legal Advisory.

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.