India recently celebrated the 10th anniversary of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”). This legislation came into force with the aim of making the workplace safer for women and to increase the participation of women in the workforce. That the Act has begun to work is evident from the fact that a survey of 370 BSE 500 companies showed a 31% increase in the number of complaints in FY23 versus FY22. These numbers point to a greater familiarity and comfort that employees have developed with the Act and with their ability to file complaints against sexual harassment using its provisions.
Complaints can vary widely in terms of complexity and in how easy or difficult it is to prove a complaint. This stems from the fact that most incidents of sexual harassment occur in private or somewhere that there are no witnesses. In addition, complainants, and respondents, are lay persons who are not aware of the intricacies of how to prove their case. Therefore, it can sometimes become difficult for a complainant to prove their case or for a respondent to establish a defence.
Unfortunately, there has been an increase in the number of cases that turn out to be false. The Act recognises that both cases that cannot be proved as well as cases that turn out to be false may exist and provides for punishment of the complainant where the Internal Committee (“IC”) inquiring into the complaint concludes that the complainant’s case is false, while also providing that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.
The role of the IC, therefore, becomes crucial in all cases of sexual harassment, as it must take care to ascertain whether the case is one of malicious complaint or only the complainant’s inability to prove their case. Whether the complainant is found guilty or not guilty, the affected party is entitled to challenge the finding before the appellate authority under the Act, which can lead to adverse publicity for the company both internally and externally.
Examples of both kinds of complaints exist:
Complaint filed against complainant’s competitor for a position within the organisation, to make him ineligible to apply for the position.
Complainant found to have been meeting the respondent regularly and had even invited him for lunch while the complaint was being investigated.
Married complainant was in a consensual relationship with the respondent and filed the complaint under pressure from her husband to prove her loyalty to him.
Complaint filed to put pressure on the manager to give a favourable rating during appraisals.
Cases with no substantial evidence:
- Typically, where the complainant and the respondent were alone and where no other proof was available of the complainant’s allegations, eg because of lack of CCTV footage or where the events took place outside the office and the IC being convinced that the incident alleged did not happen.
At the same time, it is also important that organisations provide their employees training to enable them to understand the basics of sexual harassment at the workplace, how to avoid saying or doing something which could offend a colleague, and how to recognise and report instances of sexual harassment to the appropriate authorities within the organization.
In the long run, these steps will go a long way to establish the credentials of the IC, and by extension that of the organisation as a good employer.
– Arvind Moorchung,
Advocate & Associate Partner