shop & establishment sct - Rightsofemployees.com https://www.rightsofemployees.com Know Your Rights Fri, 26 Jan 2018 18:06:16 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://www.rightsofemployees.com/wp-content/uploads/2018/01/cropped-emp1-32x32.png shop & establishment sct - Rightsofemployees.com https://www.rightsofemployees.com 32 32 Sexual Harassment at Workplace https://www.rightsofemployees.com/sexual-harassment-at-workplace/ https://www.rightsofemployees.com/sexual-harassment-at-workplace/#comments Fri, 26 Jan 2018 18:06:16 +0000 http://rightsofemployees.com/?p=42 This Act makes it illegal to sexually harass women in the workplace. It talks about the different ways in which someone can be sexually harassed and how they can complain against this kind of behaviour. What is ‘sexual harassment’? Action Example Unwelcome touching or other physical contact It is not sexual harassment when a swimming […]

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]]> This Act makes it illegal to sexually harass women in the workplace. It talks about the different ways in which someone can be sexually harassed and how they can complain against this kind of behaviour.

What is ‘sexual harassment’?

Action Example
Unwelcome touching or other physical contact It is not sexual harassment when a swimming coach touches his student as necessary while teaching her how to swim. If he touches her outside the pool once the class is over and she feels uncomfortable, it is sexual harassment.
Asking or demanding sex or any other sexual activity It is sexual harassment if the head of department tells a junior doctor to have sex with him if she wants to pass the medical residency exam.
Making remarks which are of a sexual nature. It is sexual harassment when an editor tells a young intern that she will become a successful journalist because she has fine features such as a shapely figure and long legs.
Showing pornographic material which may include videos, magazines, books etc. It is sexual harassment when a co-worker sends you pornographic videos without you ever asking him to send it.
Any other actions that are sexual in nature, which may be through speech, writing, touching etc.

Is this Act only for women?

Yes, this Act is only for women who are sexually harassed in workplaces.

Is this Act only for working women?

No, this Act is for any woman who is harassed in any workplace. It is not necessary for the woman to be working at the workplace in which she is harassed. A workplace can be any office, whether government or private.

As an employer, what do you have to do under this law?

  • You need to set up an ‘Internal Complaints Committee’ if you employ more than 10 people to handle cases of sexual harassment at your workplace.
  • In case your workplace has more than one office or unit, then there should be an Internal Complaints Committee in each branch.

There is no sexual harassment at my office. Do I still have to follow the instructions regarding setting up an Internal Complaints Committee?

Yes, even if there are no cases of sexual harassment at the moment, it is still necessary for the committee to be set up (if you employ more than 10 workers) and for all rules to be followed.

Am I not allowed to approach the police and courts because of this Act?

No, the Act gives you a choice between dealing with the offender within the office or approaching a court. If you wish, you can file a criminal complaint instead of approaching your Internal/Local Complaints Committee.

As an employer, what do you have to do under this law?

  • You need to set up an ‘Internal Complaints Committee’ if you employ more than 10 people to handle cases of sexual harassment at your workplace.
  • In case your workplace has more than one office or unit, then there should be an Internal Complaints Committee in each branch.

Who are the members of this committee?

The Internal Complaints Committee should have the following members:(a) A Presiding Officer:

  • This should be a woman who is a senior employee of the workplace.
  • In case there is no senior woman employee at your office, she can be from another office or unit of the same organization.
  • In case the other offices or units do not have senior women employees, she should be from any other workplace of the same employer (which can be another organization).

(b) Two members from among the employees of the workplace. These two should be familiar with social work or have some legal training.(c) One member from a women’s issues NGOs. She could also just be someone familiar with issues relating to sexual harassment.
At least half the members of the Internal Complaints Committee should be women.Each member can hold their position for only three years.The employer has to pay the external member fees for holding the proceedings of the committee.

What happens if a member of an Internal Complaints Committee does something wrong?

A member of the Internal Complaints Committee has to be removed from office if he or she:

  • leaks any information in relation to a sexual harassment case to the public, or
  • has been convicted of a crime or is currently the subject of an inquiry, or
  • is found guilty in any disciplinary proceeding, or has disciplinary proceedings pending against him or her, or
  • has abused their position in any way.

The employer will have to get a new member in his or her place.

What if there is no Internal Complaints Committee in every workplace?

The District Officer has to set up a Local Complaints Committee which will receive and hear complaints:

  • Which are against the employer, or
  • from workplaces which have less than 10 workers and have not set up an Internal Complaints Committee.

The District Officer has to appoint nodal officers which will forward complaints to Local Complaints Committees within seven days.

Who can make a complaint?

A woman who has faced sexual harassment at the workplace can make a complaint.

To whom should the complaint be made?

  • If the organization has an Internal Complaints Committee, the victim should make a complaint to such committee.
  • If the organization has not set up an Internal Complaints Committee, the victim should make a complaint to the Local Complaints Committee.

By when should the complaint made?

The victim should make the complaint within 3 months of the incident. If there has been more than one incident, the complaint should be made within 3 months of the date of the last incident.

Can this time be extended?

Yes, this can be extended by the Internal or Local Complaints Committees if they find that the victim could not have made the complaint earlier. This time limit cannot extend beyond another 3 months.

How should the complaint be made?

The complaint should be made in writing. In case the complaint cannot be made in writing, the members of the Committee have to help the victim in writing down the complaint.For example, if the woman is illiterate and does not have access to a trustworthy scribe who will write the complaint, she can approach the Committee and the Committee should ensure that the complaint is properly recorded.

Can someone else file the complaint on behalf of the victim?

  • If the victim is physically unable to make the complaint (for example, if she is unconscious), her relative or friend, her co-worker, any person who knows of the incident and who has taken the consent of the victim, or any officer of the National or State Commissions for Women can make the complaint.
  • If the victim is not in a mental state to file a complaint, her relative or friend, her special educator, her psychiatrist/psychologist, her guardian or any person who is taking care of her can make the complaint. Also, any person who knows of the incident can make the complaint jointly with any of the people mentioned earlier.
  • If the victim is dead, any person who knows of the incident can make the complaint with the consent of her legal heir.

Can the victim settle the matter with the offender without the direct involvement of the Committee?

Yes, she can ask the Committee to help settle the matter with the offender through conciliation.

What is conciliation?

Conciliation is a form of resolving disputes outside the formal court system and involved the joint effort of parties. In a conciliation, both parties will sit with a conciliator and work through issues to finally reach a settlement on a future course of action. The law on conciliation can be found in the Arbitration and Conciliation Act, 1996.

Can a case of sexual harassment be settled with monetary compensation in a conciliation?

No, this is not possible. The conclusion of a conciliation for sexual harassment cannot be monetary or financial compensation.

What happens after the victim and the harasser reach a settlement during conciliation?

  • The settlement should be sent to the employer or District Officer so that action can be taken.
  • The Internal or Local Complaints Committee has to provide a copy of the recorded settlement to the victim and the offender.

Once the conciliation is over, can the Committee do anything?

No. Once the conciliation finishes, the Committee will not initiate any investigation.

In case the victim does not want a settlement, what happens to the complaint?

In this case, the Committee should initiate an inquiry into the conduct of the respondent and the accusation of sexual harassment.

  • If the offender is an employee, then the inquiry should be conducted according to the service rules of the workplace.
  • If there are no such rules, then the inquiry must be conducted in a particular manner (Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013).
  • If the victim is a domestic worker, then the Committee will first look at whether there is enough to form a criminal case. If so they will inform the police who will register a criminal case of harassment within 7 days.

What if a term of settlement in the conciliation is not followed?

In this case, the victim can inform the Committee that the term has not been followed. The Committee will then either initiate its own inquiry into the matter or forward the complaint to the police.

What rights does the offender have?

Yes, the offender has the right to obtain a copy of the complaint. He also has the right to present his case before the Committee. Also, the Committee has to give both parties a copy of the findings.

What happens if the offender is convicted in court?

If the offender is convicted in a court for sexual harassment, the court can order the offender to compensate the victim. While deciding the compensation, the court will keep in mind a number of factors such as:

  • mental trauma and distress caused to the victim,
  • lost job opportunities,
  • medical treatment (whether physical or psychiatric),
  • victim’s income and general financial status,
  • possibility of paying such sum at one go or in instalments.

This section is in relation to the procedural powers of the Internal or Local Complaints Committee.

How long can an inquiry go on for?

90 days.

Can the victim continue working while the inquiry is pending?

The victim will not be required to leave work during the time of inquiry. She can make a request to the Committee which can then recommend to the employer that:

  • they transfer either the victim or the offender to another workplace, or
  • the victim be given three months’ leave.

The Committee can also recommend other measures (Rule 8 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013) such as:

  • Not allow the offender to report on the victim’s performance or to write her confidential report.
  • If the workplace is an educational institution like a college or university, not allow the offender to supervise the victim’s academic activity.

Will the victim lose out on her otherwise sanctioned leave?

No, leave that is granted under this law will not be covered under any other kind of leave. The victim can use her usual leave in addition to such leave. For example, if a workplace ordinarily grants 25 days of leave per year and the Committee recommends 20 days of leave during the inquiry, her total permissible leave for that year will be 25+20=45 days.

Is the employer bound to implement the recommendations of the Committee?

Yes, once the Committee has given the recommendations, the employer should implement them and then send a report of how they were implemented back to the Committee.

 

What happens after the inquiry is over?

After the inquiry is over, the Committee should send a report of its findings and conclusions to the employer or to the District Officer within 10 days. This report should also be sent to the victim and the offender so that they can see what conclusions have been reached.

What happens if the allegation of sexual harassment is found not to be true?

In this case, the Committee will tell the employer and District Officer that there is no need to take any action against the respondent.

What happens if the allegation of sexual harassment is found to be true?

In this case, the Committee can make several recommendations to the employer or the District Officer:

Written apology Warning or censure Not giving a promotion
Not giving an increment Termination of employment Undergoing counselling session
Community service
  • Deduct a certain amount form the salary/wages of the offender so that compensation can be paid to the aggrieved woman.
  • If the employer cannot deduct such an amount because the offender does not come to work or has left work, the committee can order the offender to pay the victim directly.
  • If the respondent does not pay the compensation, then the Committee can ask the District Officer to recover the amount.


How long can the employer or District Officer take to implement the recommendations?

60 days.

 

What if the victim makes a wrong complaint because she does not like the offender?

If the Committee finds that the woman (or her representative) made a wrong complaint because she does not like or hates the offender or that she gave them fake documents, it can ask the employer or District Officer to take action against the woman or person according to the service rules of the workplace. If there are no service rules, action can be taken in any manner recommended by the Committee (Rule 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013). This can be by way of:

Written apology Warning or censure Not giving a promotion
Not giving an increment Termination of employment Undergoing counselling session
Community service

 

How will the Committee decide whether the complaint is false?

  • If the victim is unable to provide enough proof to the Committee, it does not automatically make her complaint false.
  • The Committee will have to conduct an inquiry to find out if she made a wrong complaint on purpose.
  • Example: If there is a complaint initiated by Isha against Rohit but there are no witnesses or documents or any indication whatsoever that there was sexual harassment, then this will not be regarded as a false complaint. However, if Isha wrote an email where she told a friend she was lying, this may be a malicious or false complaint.

What happens if witnesses give false accounts?

If the Committee finds that a witness has told them things that did not happen or given fake documents, it can recommend to the employer or District Officer that action be taken according to the service rules. If there are no service rules, the government can make additional rules for this purpose.

 

How will the committee decide how much compensation should be paid to the victim?

The Committee has to consider the following factors:

  • mental trauma and distress caused to the victim;
  • lost job opportunities because of the sexual harassment;
  • medical treatment (physical or psychiatric); and
  • victim’s income and general financial status.

The Committee can decide that such compensation be paid in instalments or at one go.

Can any information about the complaint or the inquiry be made public?

No. It is unlawful to publish any information relating to a sexual harassment complaint under this law to the media. This information includes any details of the victim, offender and witnesses, the settlement or inquiry proceedings and the Committee recommendations.Committee recommendations and settlements can be published so long as there is no information in there which can identify the victim or witnesses.Example:If Rohit is found guilty of harassing Isha, none of the information relating to their identities and contact details can be made public. However, the recommendations of the Committee which required Rohit to formally apologise to Isha and leave the organization can be made public. This information can be made public without disclosing Rohit or Isha’s names or other details.

What happens if any information is leaked?

If any person who deals with the complaint leaks information, she will be punished according to the service rules.If there are no rules, then a fine of Rs. 5000 can be imposed as a fine upon the person. (Rule 12 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013).

What happens if an employer does not perform his duties under this Act?

  • The employer can be punished with a fine of up to Rs. 50,000.
  • If the employer repeatedly violates provisions of this Act, he can be asked to pay a higher fine. The employer’s license and registration can be suspended or cancelled as well.

Can a case under this Act be taken to Court?

No, no case can be taken to Court unless the victim herself or the Committee files a case before the Court.

Which Court can hear this case?

Any court, as long as it is a Metropolitan Magistrate or a Judicial Magistrate of the first class or above.

Can someone be arrested without a warrant under this Act?

No, a warrant is required for arrest.

 

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