“On 29th January evening, my manager approached me in a pantry, grabbed my ass and said “it seems you have put on weight”. He had a smirk on his face and followed it by saying “but I don’t differentiate”.
“At an office party, people were playing Have I never ever…which started off with travel destinations, food tasted, silliest things done and gradually moved on to number of intimate relationships, experiences with sexual partners and very personal questions. Gradually the discomfort was creeping in, and I wanted to excuse myself from the group but just didn’t know how to. Each time I made an excuse to make a call, go to the restroom, my peers would call out and insist I participate. Perhaps it was just a fun thing to do even though it wasn’t fun for me.It became from not fun to traumatic when this one person started making gestures, comments in reference to what was discussed at the party and took liberties to even comment on my character and relationships”
What is common between these two cases? First, both are experiences of sexual harassment and second, both were reported to Internal Committee (IC) constituted under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“Law”).
“Often, organizations are wary of admitting the number of complaints received in a year for the fear of being labelled as an unsafe organization. On the contrary, complaints being filed with IC reflects the trust employees have in the redressal mechanism and confidence in IC to conduct a fair and an objective inquiry”
Further, this trust ensures that the aggrieved is likely to reach out to IC for their concerns to be addressed rather than choosing to write on social media or filing a police complaint.
This can become possible only if IC has carried out its function as an inquiring body with complete fairness, objectivity and in a timely manner which in turn sets an example of how sexual harassment would be dealt with at the respective organization. What does that look like?
Here is a guide for inquiring into a complaint of sexual harassment:
1- Things IC should look for when a complaint is filed
- Complaint is in writing
- Date of complaint is within 3 months from last act of sexual harassment
- It includes details for IC to ascertain if the complaint falls under sexual harassment which includes name of complainant, respondent, date, place, nature of allegations, incidents etc.
If there are no details and it is difficult for IC to ascertain if the complaint falls under sexual harassment, it is pertinent to have a meeting with the complainant to understand the details of the incidents and urge the person to file another complaint with all the details.
Usually, aggrieved experiences gamut of emotions from being scared and distressed owing to experience of sexual harassment; unsure and confused about the process on filing a complaintand possible outcomes; guilt for ruining respondent’s career; anticipated alienation etc. Thus, aggrieved may require support and assistance in filing a complaint which IC must offer.
2- Quorum of IC Proceedings
The Law mandates that for inquiry proceedings, a quorum of three (3) has to be maintained at all times with Presiding officer’s (PO) presence being mandatory. However, the absence of quorum or PO has emerged as a frequent lapse during the inquiry proceeding wherein the inquiry has been conducted by one or two people and PO may or may not have been part of it. This has resulted in respondents filing an appeal on grounds of procedural lapse and denying natural justice like in the case of a reputed University in south India.
Additionallythough it is incumbent on the organization to have an external member as part of the IC, it doesn’t mandate their presence during inquiry – a route chosen by many ICs for various reasons. Organizations’ policies which mandate external member’s presence are perceived to be more committed to the cause and perceived as a just organization.
3- Copy of complaint to be shared with respondent
On receipt of complaint by IC, the Law mandates that copy of the complaint is forwarded to Respondent within 7 working days and respondent has torespond in10 working days. This is another area of non-compliance where IC may not end up following timelines prescribed under Law.In my experience, IC may be operating from a positionof expediting the inquiryhowever,this may be perceived by respondent as IC being biased.Similarly, respondent’s response should be shared with complainant for maintaining fairness and transparency.
4- Explain to complainant their rights &that they can opt for conciliation
Under the Law, IC is required to make the complainant aware of their option of conciliation. For complainant to make an informed choice, it is IC’s responsibility to explain the difference between conciliation and inquiry (one of the aspects to be highlighted here is conciliation does not imply admission of guilt), and facilitating the settlement of terms, if chosen by complainant in writing and agreed upon by respondent. A lot of organizations state that most of the complaints are resolved through conciliation. Deeper analysis indicate that it is IC which is choosing conciliation over inquiry or may be perceived so in absence of anydocument submitted by complainantrequesting conciliation and terms for the same. It is imperative for IC to make a conciliation report and share the same with both parties and the employer.
5- Inquiry into complaint
If complainant does not request for conciliation, terms are not agreed upon or complied with, complaint will proceed into inquiry. IC is required to complete the inquiry within 90 days from receipt of the complaint. Though Law allows for 90 days, it is preferable to expedite the inquiry and treat it on priority.Usually, IC members hold very senior positions and are often engaged in critical and time sensitive work in their respective roles which perhaps may come in the way of synchronizing everyone’s calendar and scheduling timely meetings.However, this delay appears to take a toll on complainant and respondent as they wait for the IC to decide their fate personally and professionally. This period has often been described as feeling anxious, vulnerable, helpless, confused, alienated etc.
The inquiry is required to be done in accordance with Law, policy and service rules if applicable.
Principles of Natural Justice:
The key responsibility of IC is to conduct inquiry into the complaint of sexual harassment by following principles of natural justice. Broadly, the principles include that both parties are to be given equal and fair opportunity to present their case and ensure no personal biases affect decision making. This requires not only getting legally trained on the Law but requires reflection and introspection on part of each IC member to understand the operations of their unconscious biases and its possible influences on decision making.
Powers of Civil Court:
For IC to adhere to principles of natural justice, it is imperative for them to have certain powers which would make possible for them to provide an equal and fair opportunity to both the parties – this includes summoning the parties involved, the witnesses that they would want IC to meet and procure evidences which they would like IC to examine.
Unless IC is bequeathed with legal powers, none of the above could be feasible and may render the IC not reaching a logical and definite conclusion within 90 days.
As IC is a quasi-judicial body, it functions like one as well. It follows processes such as examinationand cross-examinationof parties and witnesses to ensure that equal opportunity is given to both partiesto present their case and it would entail sharing evidence, statements etc. with parties and providing adequate time for them to review and prepare for further inquiry.There is a possibility that IC may consider not offering cross-examination when there is power differential for the fear of it being intimidating and threatening for the complainant. Considering the sensitivity of such interactions and fragility complainant may be experiencing or perceived hostility by witnesses while questioning/responding to a person of seniority, IC can allow for cross-examination to take place in writing as per L.S. Sibu Vs. Air India Limited and Ors,. in the High Court of Kerala, dated 08.04.2016.In cases where this process was not followed, courts have ruled that inquiry was not proper (Ashok Kumar Singh vs. University of Delhi &Ors., in the High Court of Delhi, dated 10.08.2017).
Law provides for complainant to request for interim reliefs during pendency of inquiry such as leave, transfer, change of reporting line and restraining the respondent from writing their confidential report like the appraisal report. It is important to note that IC can recommend interim reliefs only at the written request of the complainant and not of their own accord. Often, IC may sense complainant’s discomfort and ask the person to go on leave or transfer the complainant. Though the recommendation is stemming from a place of concern, it can be perceived by complainant as retaliation by IC, if not requested by complainant.
Further, suspension of respondentduring pendency of inquiry is commonly recommended by IC even though it is not categorically specified under the Law. A senior executive of a multinational company committed suicide in December, 2018 and family alleged that it was because of his suspension recommended by IC, without hearing his side.
Law states that the process of inquiry has to be done according to the service rules of the organization. In absence of such rules, the inquiry could be conducted as per the Law solely.
It is IC’s responsibility to take all possible measures to maintain confidentiality regarding the details of the complaint filed, people involved and inquiry proceedings. For this, IC could choose to set up meetings at places away from immediate workplace;get non-disclosure agreements signed by parties involved;use initials in documents;have dedicated administrative staff to make minutes, photocopy documents, schedule meetings etc. along with refraining discussing the complaint outside meeting rooms.
6- Drafting of Inquiry Report:
From the date of closing the inquiry, IC has to draft the inquiry report within 10 days. The report is expected to capture all the details pertaining to the inquiry including dates (to presenttimelines under the Law have been adhered to), people involved, minutes of the meeting of all inquiry proceedings (in verbatim), evidences submitted and examined and findings of the committee along with a definitive conclusion based on reasons. Manjeet Singh vs. Indrapastha Gas Limited, in the High Court of Delhi, Dated 24.10.2016 stated that though the principles of natural justice have many shades, one of its basic tenets is that one must pass a reasoned order i.e. the order must have a valid basis.
IC may also choose to recommend healthy measures and propose changes in policies to avert similar instances in the future.
This report is to be shared with complainant, respondent and employer.
This process outlines the broad expectations and some critical points to consider while conducting an inquiry. This is not an exhaustive list and each inquiry would take its independent course depending on facts and circumstances of the case.Balvir Singh vs. Union of India and Ors.,in High Court of Delhi, Dated 31.08.2015 statedthat in cases of sexual harassment, ‘while conducting enquiry, no strait jacket formula can be applied and what has to be kept in mind is that the enquiry is conducted in good faith and after giving fair opportunity to both the sides.’