Sexual Harassment of Women at
Workplace
(Prevention, Prohibition & Redressal)
Act, 2013 –
An Overview
MADHRI GURUSWAMY
Advocate,
T.S.Gopalan & Co.
FROM WHICH DATE THE
PROVISIONS OF THE ACT
CAME INTO FORCE?
th
9
December 2013
WHAT IS THE PURPOSE OF SHAW ACT?
To provide for –
o Protection against SH of women at
workplace;
o Prevention of SH; and
o Redressal of complaints of SH
WHAT DOES THE ACT PREVENT?
•NO WOMAN SHALL BE SUBJECTED TO SH AT
ANY WORKPLACE;
•The following circumstances may amount to SH:
– Implied or explicit promise of preferential treatment in
her employment; or
– Implied or explicit threat of detrimental treatment in
her employment; or
– Implied or explicit threat about her present or future
employment status; or
– Interference with her work or creating an intimidating or
offensive or hostile work environment for her; or
– Humiliating treatment likely to affect her health or
safety.
WHAT IS SEXUAL HARASSMENT?
Any one or more of the following unwelcome acts or
behaviour (whether directly or by implication) viz., oPhysical contact and advances; or
oA demand or request for sexual favours; or
oMaking sexually coloured remarks; or
oShowing pornography; or
oAny other unwelcome physical, verbal or nonverbal conduct of sexual nature.
WHAT AN EMPLOYER IS REQUIRED
TO DO?
– Constitute an ICC;
– Display and declare the details of the Committee and
penal consequences;
– If less than 10 women employees, display the details of
LCC;
– Formulate a SH policy/charter/resolution;
– Carry out orientation programmes, capacity building and
skill building programmes for the ICC;
– Carry out employees awareness programme.
CONSTITUTION OF ICC
Internal Complaints
Committee
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
Atleast one half of the total members so
nominated shall be women
CONSTITUTION OF ICC
• Presiding officer and every member shall hold
office for a period not exceeding 3 years;
• Members appointed from NGOs or associations
shall be paid such fees or allowances as may be
prescribed
• The Presiding officer or the member shall be
removed and replaced if there is any contravention
of Section 16 or convicted for an offence or
pending enquiry or found guilty in any disciplinary
proceedings or pending disciplinary proceedings or
abused the position as to render the continuance in
office prejudicial to public interest.
CONSTITUTION OF ICC
• If an employer has :
– More than one factory
within a State;
– Branches within a State;
– Branches across the
country;
– A factory and an office
within a State;
Local Complaints Committee
• Appropriate Government may notify a district or
additional district magistrate or collector or deputy
collector as a District Officer (D.O.) for every
District.
• Every D.O. to constitute LCC if establishments have
less than 10 workers or if the complaint is against
the employer himself.
• D.O. to 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.
What is the difference between
ICC & LCC?
ICC
• More than 10
women employees
• Domestic workers
are not covered
• A complaint against
the employer cannot
be filed
LCC
• Less than 10 women
employees
• Domestic workers
are covered
• A complaint against
the employer can be
filed with LCC
WHO CAN FILE A
COMPLAINT?
ONLY AN AGGRIEVED
WOMAN
CAN COMPLAIN
IF AN AGGRIEVED WOMAN
CANT COMPLAIN?
•
Physical Incapacity
– Relative or friend; co-worker; officer of NCW or
– SWC; any person with written consent
• Mental Incapacity
– Relative or friend; a special educator; a qualified
psychiatrist; guardian; a person who knowledge
along with any of the above person
• Dead
– Legal heir
WHO IS AN EMPLOYER?
• PRIVATE SECTOR –
–Any person responsible for the workplace
–Management, supervision and control of the
establishment and includes “board” or
“person” or “committee” responsible for
formulation and administration
• PUBLIC SECTOR –
–Head of Department, organization, institution,
branch etc.
WHO IS AN EMPLOYEE?
• Permanent
• Temporary
• Adhoc or daily
wages
• Contract
employees
•
•
•
•
•
Voluntary
Probationer
Trainee
Apprentice
Or called by any
other name
WHAT IS A WORKPLACE?
Private
Sector
Public Sector
• Departments
• Organizations
• Enterprise
• Institutions
Offices
Sports Institutions
Factories
Hospitals & clinic
Stadiums
Non-Governmental
Organizations
Professionals
Educational Institutions
Societies
Trust
Entertainment
Any place visited by the
employer during the
course of employment
WHAT IS THE REMEDY IF THE
COMPLAINT IS FALSE?
•
•
•
•
•
•
•
•
Written Apology;
Warning;
Reprimand or Censure;
Withholding of promotion;
Withholding of pay rise or increments;
Termination;
Undergoing a counselling session;
Carrying out community service.
ROLE OF ICC &
IMPLEMENTATION OF THE
ACT
HOW SHALL A COMPLAINT
BE MADE?
• The complaint shall be made by the aggrieved woman,
and shall be in writing.
• If it cannot be made in writing, the presiding officer or any
member of the ICC shall render assistance for making the
complaint in writing.
• Complaint should be made in 6 copies along with
supporting documents and names & addresses of
witnesses.
WHAT SHALL A COMPLAINT
CONTAIN?
•
Although there is no specified form of complaint
prescribed under the SHAW act, it shall be in writing and
may contain the following:
1. Name of the complainant;
2. Name of the respondent against whom the complaint is filed;
3. Details of the incident, as to what occurred along with when
and where it occurred;
4. Names of witnesses if any;
5. Any available documents or evidence, copies of which may
be annexed.
TO WHOM SHALL THE COMPLAINT
BE MADE?
• The complaint shall be made to the presiding officer or
any member of the ICC.
WHAT SHOULD BE DONE ON
RECEIPT OF A COMPLAINT?
• The ICC may take two courses at this juncture,
1.At the request of the aggrieved woman take steps to settle the
matter through conciliation.
2.Initiate an inquiry into the matter.
WHAT IS THE PROCEDURE TO BE
FOLLOWED IN A CONCILIATION?
• The settlement made, shall not be a monetary settlement.
• The ICC shall record the settlement so arrived at and
forward it to the employer to take action as specified in
the settlement.
• There shall be no enquiry after the settlement is arrived
at.
WHAT IS THE PROCEDURE TO BE
FOLLOWED IN AN INQUIRY?
• The ICC shall proceed to make inquiry into the complaint in
accordance with the provisions of the service rules applicable
to the respondent.
• Minimum 3 members including the Presiding Officer should be
present.
• No legal practitioner is allowed to represent at any stage of
proceedings before the ICC.
WHAT IS THE PROCEDURE TO BE
FOLLOWED IN AN INQUIRY?
• During the course of inquiry, both parties shall be given an
opportunity of being heard.
• A copy of the findings shall be made available to both the
parties.
• The ICC shall forward the findings and recommendations in
the form of a report to the employer.
WHAT IS THE TIME FRAME TO BE
FOLLOWED IN RELATION TO AN INQUIRY?
• The inquiry is to be started within 3 months from the date
of incident.
• If satisfied that the circumstances were such which
prevented the woman from filing a complaint within the
said period, the time limit may be extended with reasons
to be recorded in writing.
• On receipt of the complaint, the ICC shall send a copy of
the complaint sent by the aggrieved woman to the
respondent within a period of 7 working days.
WHAT IS THE TIME FRAME TO BE
FOLLOWED IN RELATION TO AN INQUIRY?
• The inquiry conducted by the ICC shall be completed
within a period of 90 days.
• The inquiry report shall be made available to the employer
and the parties within 10 days of the completion of the
inquiry.
• The employer shall act upon the recommendations within
60 days.
WHAT ARE THE POWERS VESTED
WITH THE ICC?
•
The ICC shall have the same powers as a civil court
under the Code of Civil Procedure, 1908 when
conducting an inquiry in respect of the following
matters:-1. Summoning and enforcing the attendance of any person and
examining him on oath;
2. Requiring the discovery and production of document; and
3. Any other matter which may be prescribed.
WHAT ARE THE RELEIFS AVAILABLE
TO A COMPLAINANT DURING THE
PENDENCY OF INQUIRY?
•
The aggrieved woman during the pendency of an inquiry, make a written
request and the ICC may recommend to the employer any one of the
following:
1. Transfer the aggrieved woman or the respondent to any other
workplace;
2. Grant leave to the aggrieved woman upto a period of 3 months in
addition to the leave entitled to;
3. Restrain the respondent from reporting on the work performance of the
aggrieved woman or writing her confidential report and assign the same
to another office.
WHAT IF THE COMPLAINANT OR THE
RESPONDENT REMAINS ABSENT
DURING THE INQUIRY?
•
If the complainant or the respondent remains absent for
the inquiry proceedings without sufficient cause for three
consecutive hearings, the ICC shall have the right to:
1. Terminate the inquiry proceedings; or
2. Give an ex-parte decision on the complaint.
WHAT CAN THE ICC RECOMMEND
TO THE EMPLOYER?
•
•
In case where the ICC arrives at the conclusion that the
allegation against the respondent has not been proved, it shall
recommend to the employer that no action is required to be
taken in the matter.
Where the ICC arrives at the conclusion that the allegation has
been proved,
1. To take action for the act in accordance with the provisions of the service
rules applicable to the respondent;
2. To deduct from the salary of the respondent such sum it may consider
appropriate to be paid to the aggrieved woman.
HOW IS COMPENSATION TO BE
DETERMINED?
•
The ICC may recommend a compensation to be paid to
the aggrieved woman taking into consideration,
1. The mental trauma, pain, suffering and emotional distress
caused to the woman;
2. The loss in the career opportunity due to the incident;
3. Medical expenses incurred by the woman for physical or
psychiatric treatment;
4. The income and financial status of the respondent;
5. Feasibility of such payment.
WHAT ARE THE PROVISIONS
TO APPEAL?
• An appeal may be preferred by any one of the parties
against the recommendations of the ICC.
• An appeal may be made against the implementation or
the non-implementation of such recommendations.
• The appeal can be made to the court or tribunal in
accordance with the provisions of the service rules
applicable.
• The appeal shall be made within ninety days of the
recommendations.
WOULD GENDER DISCRIMINATION
AMOUNT TO SEXUAL HARASSMENT?
• No, gender bias or gender discrimination does
not fall within the scope of the SHAW Act.
DOES THE ACT PROVIDE FOR
CRIMINAL COMPLAINT?
• Where the aggrieved woman informs the ICC that any
term or condition of the settlement has not be complied
with by the respondent, it may forward the complaint to
the police.
• Where it deems fit considering the gravity of the
complaint, may forward the complaint to the police.
• No court inferior to that of a metropolitan magistrate or a
judicial magistrate of the first class shall try any offence
punishable under this act.
WHAT ARE THE OTHER DUTIES OF AN
EMPLOYER?
• Every employer shall –
 Provide assistance to the woman
if she chooses to file a complaint
under the IPC or any other law for
the time being in force;
 Cause to initiate action, under the
IPC or any other law, against the
perpetrator;
 Treat SH as a misconduct under
the service rules and initiate
action for such misconduct;
WHAT ARE THE OTHER DUTIES OF AN
EMPLOYER?
 Notwithstanding anything, the contents of the report by
ICC, the identities of the parties or the action taken by
the employer is not be made public, published or
communicated to anyone in any circumstances;
 To create a safe working environment at the workplace
and organise workshops and awareness programmes
at regular intervals for sensitising employees with the
provisions of the act;
 Monitor the timely submission of reports by the ICC.
WHAT IS AN ANNUAL REPORT?
o ICC is required to file an Annual Report to the Employer or DO
who in turn will forward it to the State Government;
o Annual Report should contain:
Number of complaints of SH in a year;
Number of complaints disposed off during the year;
Number of cases pending for more than 90 days;
Number of workshops or awareness programmes against
SH carried out;
Nature of action taken by the employer or district officer.
WHAT IS THE PENALTY?
• Where the employer fails to –
 Constitute an ICC; or
 Take action based on recommendation of ICC or
 To include the details in the annual report,
 Shall be punishable with a fine of Rs. 50,000.
• If the employer is previously convicted of an offence and commits
the same offence, the employer 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.
THANK YOU
Madhri Guruswamy
Advocate
Mob: 99401 57312
T.S.Gopalan & Co.,
Advocates & Notaries,
No. 17, Lakshmanan Street, T.Nagar,
Chennai – 600 017.
Email – tsg@tsgandco.com
WHO IS A PERSON FAMILIAR WITH
ISSUES RELATING TO SH?
A person who has expertise on issues relating to SH and
includes:
A social worker with atleast 5 yrs experience in the field of
social work which leads to creation of societal conditions
favourable towards empowerment of women and in
particular addressing workplace SH;
A person who is familiar with labour, service, civil or
criminal law.
LET’S REFRESH
1. If your intentions are good, your behaviour cannot be
considered as SH – Yes/No
2. If everyone else is okay with a co-worker’s behaviour, you
should just accept it, even if it offends you – Yes/No
3. Asking a co-worker for date is not SH – Yes/No
4. If you ignore the behaviour of SH, it will ultimately stop or go
away – Yes/No
5. It is not important to tell someone to stop unwanted behaviour
because it usually doesn’t do any good – Yes/No
LET’S REFRESH
6. SH is prohibited only if it occurs in the workplace during working
hours – Yes/No
7. Perpetrators of SH may be men as well as women – Yes/No
8. All employees share responsibility for ensuring that the
workplace is free from all forms of SH – Yes/No
9. If I am not able to prove my complaint for SH, will I be
prosecuted for malicious complaint – Yes/No
10.Harassment of employees by non-employees such as clients,
contractors, vendors etc. and vice-versa are covered – Yes/No