Sexual harassment at the workplace is considered a violation of women’s right to equality, life and liberty. The #MeToo movement has led to a tremendous increase in women speaking up about their experiences and demanding better treatment at work. Sexual harassment laws and the ones that safeguard maternity rights solidify the foundation for every working woman in India.
A lawyer by profession and Principal Associate at Fox & Mandal, Shruti Swaika is here to explain the importance for women to be aware of their rights and gain knowledge about laws that help them through all walks of life. She shares how to recognise harassment, the process involved in putting a stop to it and remedies to seek grievances.
1. What is the Sexual Harassment at Workplace law?
The Sexual Harassment at Workplace Act of 2013 is a special Legislation aiming towards providing a safe and hostile free environment at work for women. It extends to the whole of India. It applies to both the organised and unorganised sectors in India.
2. What constitutes as sexual harassment?
As per the POSH Act, sexual harassment includes unwelcome sexual behaviour, whether directly or by implication, such as:
- Physical contact and advances
- Demand or request for sexual favours
- Making sexually-coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
3. How is the ‘Workplace’ part of the clause defined? What is the process one should follow to highlight harassment?
‘Workplace’ has to be understood in a wider connotation and not looked at in a pedantic approach. In Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the word ― workplace has been objectively defined. The test laid down includes:
1) Proximity from the place of work
2) Control of the management over such a place/residence where the working woman is residing
3) Such a residence has to be an extension or contiguous part of the working place.
Section 4 lays down the establishment of an Internal Complaints Committee (ICC)
If a workplace has less than 10 employees, it is difficult to set up ICC. In that case, complaints may be filed at the local complaints committee (LOC) established at the district level.
Section 19 requires employers to organise an orientation, workshops and awareness programs for sensitising employees to the harms of sexual harassment and to provide assistance to the complainant, should she choose to file a police complaint
The Complaint Process
- Assuming an ICC has been established in a workplace, a woman alleging sexual harassment must act quickly to preserve her complaint.
- Section 9 requires that a complaint of sexual harassment be filed within three months of the date of the incident.
- This may be extended to another three months if the woman can prove that those grave circumstances prevented her from filing at an earlier time although ‘grave’ is not defined within the act.
- The ICC is required to complete the inquiry within 90 days of receipt of a complaint. While the complaint investigation is ongoing, upon written request of the complainant, the woman may be transferred to another workplace or granted leave for a period of up to three months.
- On completion of the inquiry, a report will be sent to the employer or the District Officer (for workplaces with fewer than 10 employees) who is then obliged to take action on the report within 60 days.
- Employers are required to ensure timely submission of reports to the District Officer.
- Section 15 provides various factors to be considered if compensation for the aggrieved woman is deemed appropriate by the ICC, which include the level of mental trauma, pain, suffering, emotional distress, medical expenses incurred, the financial status of the respondent, loss in career opportunity due to the incident, and the feasibility of such payment in a lump sum or in instalments.
- As a result, the accused person faces a potentially significant financial loss if found liable by the ICC.
- The Act provides that the deductions may be made from the respondent’s salary or wages. If a complaint is not proven, the ICC can instruct the employer or appropriate District Officer that no further action is required.
Any aggrieved Party also has a right to appeal within 90 days of the recommendation against the order of the ICC/LCC for further reliefs under this Act.
4. What is the Maternity Benefit Act & what is the procedure to seek a remedy for related grievances?
It is an Act to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for maternity benefit and certain other benefits. Under the Maternity Benefits Act, 1961, the condition levied is that the female employee should have served the institution for a minimum period of 80 days in 12 months preceding the date of expected delivery. Also, the Act has undergone regular amendments with the recent one being in 2008. Here, the minimum medical bonus in case of inability of the employer to provide free medical care to pregnant women employees was raised from Rs 25 to Rs 1000 extending to Rs 20,000.
5. How do I claim Statutory Maternity Pay?
To claim Statutory Maternity Pay, you must tell your employer that you are pregnant and will be off work because of the birth. You must tell them 28 days before you decide to start maternity leave. Your employer may need you to tell them in writing.
6. What documents will I need to claim Statutory Maternity Pay?
When you tell your employer that you will be off work because of your pregnancy, they will want to see a medical certificate (a MATB1). Your doctor or midwife will issue this certificate no earlier than 20 weeks before your baby is due.
7. How do I challenge a Statutory Maternity Pay decision?
If you disagree with a Statutory Maternity Pay decision made by your employer, you can contact HM Revenue and Customs Statutory Payments Disputes Team.
8. If I am being deprived of the benefit of the Maternity Benefit Act, 1961 can I file a complaint with the National Commission for Women?
Yes, you can approach the National Commission for Women in case your employer/ concerned organization is denying you the maternity benefit as per the provisions of the Maternity Benefit Act, 1961.
9. Who can file a complaint before the National Commission for Women?
A person intending to file a complaint before the National Commission for women may do so by making a complaint on the official website of the Commission (ncwapps.nic.in) under the section of ‘register online complaints’. One can also send a written application containing all the important details (along with supporting documents, if any) through post or by hand. Any case involving deprivation of women’s right or harassment of women in India can be registered with the National Commission for Women. The complaint should disclose complete details of the matter with specific relief/intervention sought from the National Commission for Women.