Anti-sexual harassment law: Sample sensitisation presentation

MAKE WOMEN EMPLOYEES

AWARE OF THEIR RIGHTS

AGAINST SEXUAL

HARASSMENT AT

WORKPLACE

[ Name of organization and logo ]

Anti-Sexual Harassment Policy of

our organization

With the passing of theAnti-Sexual Harassment atthe Workplace Act andRules on December 92013, every company (andours is no exception) hasan Anti-Sexual Harassmentpolicy wherein the rights ofemployees against sexualharassment inter alia areelaborately discussed.

Copyrights. Intelligent Legal Risk Management Solutions LLP.

http://sexualharassment.nujs.edu

What constitutes sexual

harassment?Unwelcome physical contact and

advances.

Showing pornography, making

sexually colored remarks.



Examples:V

ER

BA

L

• Whistling at someone, cat calls

• Telling sexual jokes or stories

• Making sexual comments or innuendos

• Asking personal questions about sexual life

NO

N-V

ER

BA

L

• Blocking a person's path

• Giving personal gifts

• Displaying sexually suggestive visuals

• Making sexual gestures with hands or through body movements

PH

YS

ICA

L • Touching the person's clothing, hair, or body

• Giving a massage around the neck or shoulders.

• Standing close or brushing up against another person



Any kind of implied or explicit promise of

preferential treatment;

Threat of;

a) detrimental treatment in your employment

b) present or future employment status;

Interference with your work or creating an

intimidating or offensive or hostile work environment;

or

Humiliating treatment likely to affect your health or

safety.

Also, any of the following situations, if they occur or

are connected with any act of Sexual Harassment

may amount to sexual harassment:



Which acts are not protected under

the Act?

Only conduct of sexual nature is covered

under our policy.

No protection under the Act is given in

situations of threats of violence, offensive

language or slang which is not of sexual

nature.



Who qualifies as an employee ?

Full

time/Part

time

employee

s

Ad hoc /

Daily basis

Temporary

employees

Trainees/

Interns/

Apprentices

Probationers

Employed

not for

remuneratio

n

Or

voluntarily

working

Full time employee Daily wage worker

Household

workers

Trainees and interns Household workers



What constitutes as ‘Workplace’

1. Premises of all government and private entities which operate on a

commercial basis.

2. Work in education, entertainment, vocational services, sports

facilities.

3. Hospitals and nursing homes.

4. Places where voluntary work is done

5. With respect to household workers, even a house is considered to

be workplace

6. Also, any place visited by the employee during employment

including transportation provided by the employer constitutes as

workplace1

.

2. 5.



Broad Outline of remedies

available

You may approach the Internal Complaints Committee (Instituted in organization with 10 or more employees)/Local Complaints Committee if perpetrator is under the control of the employer

OR Especially in case of the

perpetrator being an outsider, the employerwill assist the victim in filing a direct FIR against the perpetrator



Internal Complaints Committee

Every employer of a workplace shall, by an order in writing, constitute a committee known as the “Internal Complaints Committee”) [Section 4(1)]

Presiding Officer – Senior most woman employee in the work place

Not less than two members from amongst employees preferably committed to the cause

of women or who have had experience in social work or have legal knowledge

One member from amongst NGOs or associations committed to the cause of

women or a person familiar with the issues relating to Sexual Harassment

At least one half of the total members so nominated shall be women



These are the members of our

Internal Complaints Committee

• [Insert name]

• [Insert contact details]Chairperson

• [Insert name]

• [Insert contact details]Member

• [Insert name]

• [Insert contact details]Member



Role of Local Complaints

Committee (LCC)

a) If establishments have less than 10

workers,

b) If the complaint is against the employers

• The District Officer will designate: one nodal officer in every block

‘taluka’, ‘tehsil’ in rural or tribal area and

ward or municipality in the urban area

to receive complaints and forward the same

to LCC within 7 days.

•The contact details of the nearest LCC

is:

[Insert contact details of the

nearest LCC]

• One may approach the Local

Complaints Committee ( LCC) :



When can you approach the ICC/

LCC and lodge a complaint?

There are three essentials to be met to lodge a

complaint and approach the Internal

Complaints Committee( ICC )

1) The alleged act must constitute sexual

harassment

2) The incident should have taken place in our

workplace.

3)The offender should be under our control i.e,

he should not be an outsider, who is not

subject to the rules and regulations of our

organizationCopyrights. Intelligent Legal Risk Management Solutions LLP.


Methods of lodging the

complaint:

DIRECTLY INDIRECTLY

Complain can be lodged by you



DIRECTLY

You can directly approach the ICC keeping

the following in

a) Complaint be filed within 90 days of the

incident

b) Complaint filed in 6 copies+ supporting

documents, names and addresses of the

witnesses.

None of the parties can be represented by a

lawyer during the proceedings



INDIRECTLY

IN CASE OF

PHYSICAL

INCAPACITY

a)friend or relative

b) Co worker

c) worker of the National Commission

of Women or State Women’s Commission

d) Any other person who knows about the

incident with your written permission

IN CASE OF

MENTAL

INCAPACITY

a)A friend or relativeb) A special educator

c) A qualified psychiatrist or psychologist

d) Any person who is aware of the incident jointly with a friend or relative or a special

educator or a psychiatrist or

psychologist under whose care you might

be

IN CASE OF

DEATH

Any person who has knowledge of the

incident with written permission of the

legal heir



Things you should remember :

You must preserve records that substantiate your allegation. These may include all forms of communication including:

emails,

SMSes,

telephonic records and

any other material which may be helpful in establishing your claim.

Do not retain such records and materials exclusively on equipment owned by the employer. Maintain a back-up of all such data and send a record of such materials to the ICC/ LCC.

At the time of making the complaint, request for confidentiality if you so desire. Both the ICC and LCC are bound to ensure it.

It is advisable that you retain a copy of complaint and supporting materials.

Interim measures that can be

granted by the ICC

In case the inquiry takes time to be solved you can be granted interim relief by the ICC in the form of :a) You or the accused can be Transferred to another location as the case may b) You may be granted leave for a period of 3 months ( without any deduction in salary) in addition to statutory or contractual leavec) The accused person may be restrained from reporting on your work performance or writing confidential reports about you.(In case of an educational institution, restriction on academic supervision by the accused can be granted.)Copyrights. Intelligent Legal Risk Management Solutions LLP.


The option of conciliation

After hearing the complaint, ICC may advise conciliation which results ina settlement agreementbetween the parties.

The settlement agreement may specify that: The perpetrator apologizes for his prior conduct to you.

That you agree to withdraw all legal proceedings in lieu of the instant case of harassment

Any conditions laid down by the ICC or agreed by the parties

The settlement has been made without any monetary transaction

It may specify the future conduct to be observed between the perpetrator and you.

The settlement agreement will be forwarded to the Employer and the District Officer by the ICC or the



Process of filing the complaint and

inquiry

A written complaint is to be lodged with the ICC/LCC within a period of 3 months from the date of incident.

The Presiding officer or any member of the ICC/ chairperson or any member of the LCC should assist you in filing it in a proper manner

The ICC/LCC may extend the time for complaint by another 3 months on presentation of reasonable grounds

The ICC/LCC should forward the complaint letter to the accused within 7 days

The Complaints Committee shall make inquiry into the matter keeping the principles of natural justice in mind

The accused should reply along with the evidence and documents within 10 days from the date of receipt of the

complaint letter.

For conducting the Inquiry, a minimum of 3 members of the Complaints Committee including the Presiding Officer/ Chairperson

should be present.

A proper hearing would be given to both the parties

The Complaints Committee can proceed with the inquiry in the absence of one party, if the person fails to appear for 3 consequitve

hearings

Continued..



Inquiry ( In a nutshell)

In case a conciliation is not possible, an inquiry by the ICC/ LCC is initiated against the matter.

Inquiry is to be conducted as per Service Rules and if no such rules exist, in the manner as may be prescribed;

Inquiry to be completed within a period of 90 days following which a report which recommends the action to be taken by the employer is submitted in another 10 days

The employer or the D.O. has to act upon the recommendation within 60 days of its receipt by him.



Inquiry ( Relief and

Compensation)

Where the allegation against the accused has been

proved, ICC or LCC recommends us ( the employer )or

the District Officer (D.O.) to take action against sexual

harassment:

As a misconduct in accordance with service rules

To deduct an appropriate amount from the salary or wages

of the accused as advised

If we are unable to make any deduction (the accused has

left the organisation), we may direct the perpetrator to pay

such amount to you;

If the perpetrator fails to pay the sum, the ICC or LCC may

forward the order for recovery of the sum as an arrear of

land revenue to the concerned D.O.Copyrights. Intelligent Legal Risk Management Solutions LLP.


Determination of

compensation

ICC or LCC shall have regard to –

The mental trauma, pain, suffering and

emotional distress caused.

The loss in the career opportunity due to

the incident in sexual harassment;

Medical expenses incurred for physical or

psychiatric treatment;

Income and financial status of the

perpetrator;

Feasibility of such payment in lump sum

or in instalment.Copyrights. Intelligent Legal Risk Management Solutions LLP.


Our responsibilities

It is our responsibility to ensure smooth

proceedings of the inquiry and to ascertain that

the witnesses and the accused is present at

the proceedings of the ICC/LCC.

If you have requested, interim relief may be

granted by the ICC/LCC so long as the inquiry

is pending/ conciliation process is completed.



Appeal from the order of ICC

If you are dissatisfied with the order passed by

the ICC/ LCC, you may appeal to

1. Authority mentioned under Service Rules

made by the government (If applicable to

the employee)

2. Authority notified by the government under

the Industrial Employment (Standing Orders)

Act, 1946.

This statute applies when the number of

workers ranges from 50-100.Copyrights. Intelligent Legal Risk Management Solutions LLP.


In case there is a breach in our

obligations :

Where we fail to –

Constitute an ICC; or Follow the recommendation of ICC/LCC; or To include the details in the annual report,

We are punishable with a fine of Rs. 50,000.

If the person concerned is earlier convicted of an offence and commits the same offence again, he shall be liable to –

Twice the punishment, which might have been imposed on first conviction;

Cancellation of license or withdrawal or non-renewal or approval or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.



Provisions under IPC and filing of

an FIR Where there is no specific law to deal with the particular offence of sexual

harassment, the Indian Penal Code, 1860 is there to help you. It is used to punish the offender with respect to the nature of the act committed by him. The following sections of Indian Penal Code, 1860 cover acts of sexual harassment:

Sections 292 and 294 deal with Obscenity

Section 354 deals with Criminal Force or Assault Intended to Outrage Modesty

Section 354 A - Sexual harassment

Section 354 D - Stalking

Section 354 B - Intent or compelling a woman to disrobe

Section 375 deals with the offence of Rape

Section 509 deals with Word, Gesture or Act Intended to Outrage Modesty of women

If violation of any of the above provisions takesplace, we will assist you in filing anFIR directly with the police.



The consequences of false and

malicious complaints

If the allegation against the accused is malicious or the

complaint has been made knowing that the complaint is false

or you or any other person making the complaint has

produced any forged or misleading documents;

ICC or LCC will recommend the employer to take action

against you or person making the false complaint in

accordance with the provisions of the service and the

consequences may include termination of employment,

deduction in salary, warning, demotion, etc.

A mere inability to substantiate a complaint or provide

adequate proof will not be considered as a malicious or

false complaint.



If you are facing a genuine problem, we

will be happy to help but if it is for

satisfying a grudge you hold against any

employer, such fabricated case is neither

appreciated nor will it be entertained.



For any further help you may contact the

members of the ICC. Their name and contact

details are as follows:

1. [Insert name and contact details]





Law

Anti-sexual harassment law: Sample sensitisation presentation