‘Bullying’, ‘gaslighting’, ‘mobbing’, ‘name-calling’, ‘mistreatment’, ‘microaggression’, and so on -are often heard at workplaces and complained about by the employees.
In India, like in other jurisdictions, the employees are increasingly vocal about the disgraceful behaviour and conduct of their managers and colleagues, and the way it impacted their work and mental health.
Unfortunately, the issue has not gathered significant attention in India; and India is yet to discuss and frame laws prohibiting workplace harassment that is non-sexual in nature.
What is considered non-sexual harassment?
In India, the sexual harassment of women at workplaces is prohibited and laws protect women from harassment that is sexual in nature.
Indian laws also prohibit discrimination in employment and try to ensure a fair work environment, based on gender, and protect the rights of transgenders, specially-abled persons, and HIV-positive individuals in various employments. However, these measures are not sufficient to define various forms of non-sexual harassment in workplaces.
In a case, the Andhra Pradesh High Court tried to define ‘workplace harassment’ and said that it is a type of unwelcomed action towards an employee by the employer or anybody on his behalf that leads to difficulty in performing assigned tasks or causes the employee to feel that he/she is working in a hostile environment.
The court said that such harassment may be based on factors such as race, gender, culture, age, sexual orientation, or religious preference.
In this case, the court held that non-sanction of leave under justified circumstances is not harassment at work. However, the narrative of workplace harassment, may not be sufficient to cover cases where the perpetrator is not acting at the behest of the employer.
Remedies available under existing laws
The Indian Constitution confers the right of every citizen of India to practice any profession or to carry on any occupation, trade, or business, subject to restrictions that may be imposed by the government.
As such it is an obligation of the employer to provide a conducive work environment for all his employees. An aggrieved employee may approach the competent court of law for remedies such as damages for the injury or damage suffered by him.
If the conduct amounts to an unfair labour practice, the aggrieved workman can seek remedies under the applicable labour laws.
In some cases, the employees may also file criminal complaints against the company and other employees by invoking penal law provisions for defamation, causing hurt, and so on.
However, where an employee filed a case against his supervisor and inquiry officer for cheating, dishonesty, and criminal breach of trust, the Calcutta High Court held that a person may be aggrieved at his emotional level by the behaviour or conduct of any other person, but that does not mean that every such behaviour or conduct would amount to be culpable or criminal. The court quashed the criminal case against the supervisor and inquiry officer.
In the absence of specific laws regulating ‘non-sexual harassment’ or its forms, the complaints of such harassment are often unrecognized, unheard and unremedied at workplaces.
And an aggrieved person may fail in getting remedies under civil or criminal law considering the preponderance of the evidence or standard of proof required to be met in such cases.
Nevertheless, in many companies, HR policies and guidelines have been playing a major role in defining acceptable and non-acceptable behaviours at work, the process of redressal of employee grievances, and disciplining the perpetrator.
Conclusion
Although HR policies have been playing a significant role in defining the limitations of an employee’s behaviour; in the absence of specific laws defining and regulating different forms of non-sexual harassment at workplaces, the chances of complaints of employees being unrecognized, unheard, and unremedied are high.
Hence, it is necessary that India lays down regulations for the prevention, prohibition, and redressal of non-sexual harassment in the workplace; and all disgraceful acts at workplaces are strictly restricted to ensure mental and physical well-being of the employees.
