Policy and Rules for the Prevention, Prohibition and Redressal of Sexual Harassment at the Workplace
1: Statement of Objects
The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 lays down rules and procedures for the prevention and redressal of sexual harassment at the workplace. It places an obligation on the Director to provide a safe work environment in this regard. It makes it mandatory for workplaces which have more than 10 employees to constitute an Internal Complaints Committee (ICC).
In pursuance of the legal and ethical mandate to provide a safe work environment, Another Light Counselling has formulated this Policy and Rules for the Prevention, Prohibition and Redressal of Sexual Harassment at the Workplace. The Policy and Rules are also in consonance with judgments of the Supreme Court in Vishaka v. State of Rajasthan (1997) 6 SCC 241, Navtej Singh Johar & ors vs. Union of India, 2018 and NALSA vs Union of India, 2014.
ALC is committed to providing a safe work environment free from discrimination on any ground including gender and from harassment including sexual harassment, and to ensure this through all of ALC's interventions and practices. ALC is further committed to make efforts to prevent, prohibit and redress sexual harassment or gender based discrimination which hinders the practise of work and access to equal opportunities, and to promote a healthy work environment in which every person can work to develop their fullest potential.
2: TITLE AND EXTENT
- These Policy and Rules shall be called the “ALC Policy and Rules for the Prevention, Prohibition and Redressal of Sexual Harassment at the Workplace”
- The ALC Policy and Rules are in compliance with the legal mandate of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013 while also drawing from relevant landmark judgments.
- ALC comprises 5 employees, in addition to the Director. As a proactive measure, ALC is constituting a Complaints Committee, though the same is not statutorily required, the total number of employees being less than 10.
- The Complaints Committee shall comprise 3 external members, independent of ALC, and 3 internal members from the organization who have experience and expertise in areas of gender, sexuality and mental health.
3: DEFINITION - in these Rules, unless the context otherwise requires
- “Aggrieved Person” means in relation to the work of ALC, or any services provided by ALC, any woman, transgender person or person with intersex variations, or vulnerable populations on account of their gender and sexual identity expression, of any age, whether employed by ALC or not, including a client, or resource person, who is subjected to sexual harassment by the Respondent.
- “Transgender person” means a person whose gender is other than the gender assigned to that person at birth and includes Trans-man or Trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy) on the basis of their self-determined identity.
- “Person with Intersex Variation” means a person who at birth shows variation in their primary sexual characteristics i.e. external genitalia, chromosomes or hormones from normative standards of male and female body.
- “Employee” means any person employed by ALC, for any work on regular, temporary, ad hoc, contractual or daily wage basis, either directly, or by or through any agency (including a contractor), with or without the knowledge of the Director, whether for remuneration or not, or working on a voluntary basis, interns, or otherwise, whether the terms of employment are express or implied, and includes a person employed at the grade of a Director, Manager, Coordinator, Officer, Administrative officer, support staff, whether employed as a temporary, casual, consultant, probationer, trainee, or by any other name called, and includes any person who reports to the Director of ALC.
- “Complaints Committee (CC)” means the committee constituted under Rule IV for purposes of redressal of sexual harassment at the workplace at ALC.
- “Outsider” means any person who is not an employee of ALC, and includes but is not limited to:
- any contractor or person providing residential, food, courier, transport, office supplies, or any other facilities to ALC;
- visitor to any of the offices of ALC;
- Clients of ALC;
- Participant attending a seminar, workshop, training programme, meeting, or any other event or programme organised by ALC;
- any other person who is associated with ALC through the course of its work but is not an employee.
“Partner Institutions” means any NGO, private sector corporation, or government body, or any other group or organization, with which ALC enters into an agreement, or collaborates with, or has a working relationship with, in furtherance of its objectives, and includes representatives of such institutions.
“Respondent” means any person against whom the aggrieved person has made a complaint of sexual harassment under Rule VI, and includes but is not limited to an employee of ALC (sub clause (4) of Rule III), an outsider (sub-clause (6) of Rule III), or any other person.
“Sexual Harassment of a person” means –
includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-
- physical contact or advances; or
- demand or request for sexual favours; or
- making sexually coloured remarks; or
- showing of pornography; or
- any other unwelcome, physical, or verbal, or non-verbal conduct, of a sexual nature, or sexually determined behaviour, including but not limited to, loaded comments, jokes, letters, phone calls emails, sms, twitter or any other form of internet or electronic communication, gestures, lurid stares, spreading rumours, physical contact, stalking, sounds or display of a derogatory nature, deprecatory or denigrating remarks or conduct based on their marginalised sexual orientation, sexual characteristics, gender identity and gender expression and directed towards any person.
- or/and any unwelcome physical, verbal or non-verbal act or conduct of a sexual nature, or sexually determined behaviour, which amounts to:
- implied or explicit promise of preferential treatment in their employment; or
- implied or explicit threat of detrimental treatment in their employment; or
- implied or explicit threat with regard to their present or future employment status; or
- which has the purpose or effect of interfering with or interferes with a woman, Transgender person or person with intersex variation’s work, or performance, or of creating an intimidating, hostile or offensive work environment; or
- when submission to any of the above conduct is made a term or condition of employment, participation or evaluation of a woman, transgender person or person with intersex variations engagement in any activity of the ALC.
- any conduct that is gender based, gender-identity based, sexuality based or of a sexual nature that is likely to affect mental, physiological, emotional or physical health or safety of a woman, or transgender person or a person with intersex variation;
- “Workplace” means--
- The office of ALC located in Mumbai;
- Any other temporary, or permanent, branch or unit, established by ALC.
- any place visited by the employee arising out of or during the course of work/employment including any transportation provided by the Director for undertaking such journey, for purposes of trainings, meetings, workshops etc.
- The interaction of any employee's of ALC with clients for purposes of work, whether through virtual/electronic mode or physical mode.
4. DUTIES AND RESPONSIBILITIES OF ALC
- Provide a safe work environment free from sexual harassment including prevention and deterrence of sexual harassment.
- Provide a mechanism for redress in cases of sexual harassment, through the CC.
- Take prompt and necessary action against anyone violating the present Policy and Rules in accordance with Rules and Procedures laid down herein.
- Ensure that the Outsider providing any service to ALC respects and abides by the Policy and Rules and in the event of breach of the Policy and Rules by any person associated with the Outsider, appropriate action will be taken, including suspending or discontinuing the services supplied by the Outsider.
- Prevent and prohibit sexual harassment by prominently displaying and publishing the Policy and Rules and the definition of sexual harassment at appropriate places at the workplace including on its website.
- Prepare and widely circulate in it offices and amongst Partner organisations, the Policy and Rules against Sexual Harassment at the Workplace, in English and Hindi.
- Display and publish at conspicuous places in the workplace, the penal consequences of sexual harassment of women.
- Display at a conspicuous place in the workplace and inform electronically and otherwise, relevant details about the constitution and functions of the CC, as well as the names and contact details of the members of the CC.
- Create awareness and understanding amongst employees about the prohibition and redressal of sexual harassment at the workplace by organising regular workshops and sensitisation programmes conducted by persons with an expertise in law and women’s rights.
- Include the Policy and Rules in all employment contracts or consultancy agreements or any other work related contract or arrangement, and ensure that the same is binding on the person entering into a contractual agreement or work relationship with ALC.
- Ensure the constitution of an CC to implement the mandate of the Policy and Rules.
- To ensure the timely nomination of members of the CC as prescribed in the rules herein.
- Conduct orientation programmes and capacity building workshops for members of the CC.
- Provide and make available all information that the CC may require for purposes of diligently and fairly inquiring into a complaint.
- Assist in securing the attendance of the respondent and witnesses before the CC.
- Provide necessary infrastructure and facilities to the CC, including office space, secretarial staff, allocation of time, transport facilities, to enable them to discharge their functions efficiently and effectively.
- Bear the travel, boarding and lodging (if required) expenses of the members of the CC, and the travel and related expenses incurred by the complainant and the witnesses in order to appear before the inquiry conducted by the CC.
- Monitor the timely submission of reports of the CC.
- Provide all necessary facilities to enable the aggrieved person, to attend, and to participate in the proceedings before the CC.
- Provide assistance to the aggrieved woman if she wishes to lodge a complaint in relation to an incident of sexual harassment which constitutes an offence under the IPC (Under Sections 294, 354, 354A, 354B, 354C, 354D, 375, or 509 IPC). Explanation: It is clarified that, the aggrieved person may if she so desires, lodge a complaint with the appropriate authorities, including the police, and at the same time seek redress through the internal mechanism of CC provided under this Policy and Rules.
- Provide assistance to the aggrieved person, including providing them leave from work and any other support or assistance that they may require in the circumstances.
- In cases where the Respondent is an employee of a Partner Organisation, assist the aggrieved person by providing all assistance and support in seeking redress for an incident of sexual harassment
- Ensure that the filing of a complaint shall not adversely affect the terms and conditions of work of the aggrieved person or in any other way alter the conditions of work of the aggrieved person or witnesses concerned, to their prejudice, as a consequence of filing a complaint or participating in the inquiry.
- Ensure that no adverse or retaliatory action, such as transfer, loss of seniority, suspension, change in employment status, dismissal, intimidation, harassment etc. is taken against a person for filing a complaint of sexual harassment or against any person for cooperating in an inquiry of sexual harassment.
- Ensure the confidentiality and protection of the identity and address of the aggrieved person, respondent and witnesses, is maintained and the same is not subject to disclosure even under the Right to Information Act, 2005.
- Ensure that all Partner Organisations receiving funds or grants or expert assistance from ALC formulate a Policy and Rules against Sexual Harassment and institute the CC mechanism at their workplace in accordance with Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act 2013.
- To create deterrence at the workplace, information regarding justice secured by the aggrieved person in a complaint of sexual harassment may be disseminated without disclosing any identifying feature that may lead to the identity of the aggrieved person and the witnesses from becoming public.
- Cause to initiate action under the Indian Penal Code or any other law for the time being in force, against the perpetrator/respondent; and where the perpetrator/respondent is not an employee of ALC, on the request of the aggrieved person, cause to initiate action at the workplace where the incident of sexual harassment occurred.
- Refer the aggrieved person to a lawyer, and/or engage a lawyer on behalf of the aggrieved person in appropriate cases.
5. COMPLAINTS COMMITTEE (CC)
ALC is reconstituted its Complaints Committee effective from August 1st 2021 and the Committee shall hold the office for one years, i.e. till August 1st 2022, in line with the rules of the said Act. Members of this Committee are as follows:
- Devika Dharmaraj
- Deepak Kashyap
- Sunalini Kumar
- Aastha Bhutra
- Ritika Jain
- Ruchi Bhutada
The members of the CC shall be proposed by the Director and confirmed by the employees of ALC.
6. FUNCTIONS OF THE CC
- A complaint of sexual harassment shall be made to the CC by the aggrieved person in writing. The aggrieved person may present the written complaint to any member of the CC; or the same may be sent electronically to the official email id of the CC. However a self-attested (through signatures or thumbprint) and dated copy of the complaint shall be presented to the CC, by the aggrieved person, prior to the commencement of proceedings by the CC.
- ALC must also provide for the services of a sign language interpreter where necessary, copies of the complaint must also be made available in braille wherever necessary.
- The complaint of sexual harassment shall be filed by the aggrieved person within a period of three months from the date of the incident and, in case of a series of incidents, within a period of three months from the date of the last incident. Provided that if the CC is satisfied that the circumstances were such that they prevented the aggrieved person from filing the complaint within the limitation period, the CC may extend the time limit for a further period of three months, and record its reasons in writing.
- On receipt of a complaint the CC shall offer to the aggrieved person the option of Conciliation.
- The CC may, only if a written request is made by the aggrieved person, before initiating an inquiry into the complaint, take steps towards conciliation between the aggrieved person and the respondent. Provided that under no circumstance shall a monetary settlement be made the basis of such a conciliation between the parties.
- The settlement arrived at through conciliation shall be recorded by the CC and the same forwarded to the Director, to take action according to the recommendation. Copies of the settlement recorded shall be provided by the CC to the aggrieved person and the respondent.
- Where a settlement is reached, through conciliation, no further inquiry shall be conducted by the CC.
- Provided that where the aggrieved person informs the CC, that any term of condition of the settlement arrived at under sub-clause (c) of this Rule has not been complied with by the respondent, the CC shall proceed to make an inquiry into the complaint, or forward the complaint to the police, as requested by the aggrieved person.
- Provided that the aggrieved person expresses that they do not want to opt for conciliation and expresses in writing that they want an inquiry to be initiated into the complaint, the CC shall initiate an inquiry as per Rule VI(3)
- INQUIRY INTO COMPLAINT:
- The CC shall while inquiring into complaints of sexual harassment follow procedures in conformity with the principles of natural justice and gender sensitivity.
- During inquiry into a complaint, a minimum of three members of the CC including the Presiding Officer must be present.
- At the time of filing the complaint with the CC, the aggrieved person shall submit a copy of the complaint, along with supporting documents and names and addresses of witnesses they want to examine.
- Within a period of seven working days of receipt of complaint, the CC shall send one copy of all documents received from the aggrieved person to the respondent.
- Within a period of ten working days from the date of receipt of complaint, the respondent may file with the CC, a reply to the complaint along with the list of documents they seek to rely on, and the names and addresses of witnesses they wish to examine.
- At the commencement of the inquiry, the Committee shall prepare a charge sheet containing specific charges of sexual harassment based upon the complaint and hand over the same to the respondent as well as the aggrieved person.
- Legal practitioners cannot represent either the aggrieved person or the respondent at any stage of the inquiry proceedings before the CC.
- The Presiding Officer conducting the inquiry shall inform the aggrieved person and the respondent at least forty-eight hours in advance, in writing, of the date, time, venue of the inquiry proceedings.
- The CC shall not, at any time during the inquiry proceedings or deliberations, cause the aggrieved person and the respondent to be placed face to face.
- The aggrieved person as well as the respondent shall be given an opportunity to lead evidence, both documentary as well as through witnesses.
- The aggrieved person and the respondent shall have the right to cross-examine each other and any other witness presented by the other party. However to ensure that the aggrieved person and her witnesses are not traumatised or humiliated and being mindful of gender sensitivity, such cross examination shall be conducted through the Presiding Officer, to whom the respondent may submit questions in writing. The respondent shall have no right to directly cross-examine the aggrieved person or their witnesses. The Presiding Officer shall exercise her discretion and respect the dignity of the aggrieved person, put only questions that are relevant to the complaint under inquiry, to the aggrieved person and their witnesses, and disallow any inappropriate questions that will intimidate, traumatise or insult them.
- All inquiry proceedings of the CC shall be recorded and the same, together with statements of the witnesses shall be endorsed by the persons concerned in token of authenticity thereof.
- All persons participating in the inquiry including members of the Inquiry committee shall take and observe an oath of secrecy about the proceedings, to protect the identity and dignity of the aggrieved person and the respondent. Any violation of the oath of secrecy shall invite penalties.
- The inquiry shall be conducted in a place that ensures the confidentiality of all parties and witnesses.
- The members of the inquiry committee shall maintain confidentiality about the proceedings conducted by them.
- The Inquiry committee shall be sensitive to the covert, private and insidious nature of Sexual Harassment and shall take into account that often the aggrieved person may not be able to present direct or corroborative evidence.
- The past sexual history or character of the aggrieved person shall be deemed irrelevant and inadmissible as evidence in an inquiry into a complaint of sexual harassment.
- The Committee may consider as relevant any earlier complaints of sexual harassment against the respondent with regard to sexual harassment or any other form of violence against women, Transgender person or person with intersex variations.
- The venue of the inquiry shall be decided by the CC, taking into consideration the safety of the aggrieved person and the convenience of both the parties.
- ALC shall bear the travel expenses of the members of the CC and travel and related expenses incurred by the aggrieved person, witnesses and the respondent in order to appear before the inquiry conducted by the CC.
- For the purposes of making an inquiry, the CC shall exercise the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908 when trying a suit, and may:
- summon and enforce the attendance of any person and examine him on oath;
- require the discovery and production of documents;
- The Committee shall complete the inquiry within a period of 90 days from the date on which the inquiry is commenced.
7. EX-PARTE DECISION
If the aggrieved person or the respondent, fail, without sufficient cause to present themselves for three consecutive hearings of the inquiry convened by the Presiding Officer, the CC shall have the right to terminate the proceedings or give an ex-parte decision on the complaint. Provided that the CC shall give a notice in writing, fifteen days in advance to the concerned party prior to terminating the inquiry or passing an ex-parte order.
8. INTERIM ORDERS DURING PENDENCY OF ENQUIRY
During the pendency of the inquiry, the CC may recommend to the Director to:
- Issue an order restraining the respondent or any person acting on behalf of the respondent from attempting to contact, influence, intimidate or exert pressure on the aggrieved person and;
- On a written request made by the aggrieved person, re-allocate the terms of work in a manner that the aggrieved person and the Respondent do not interact/come into contact;
- If the aggrieved person is an employee, grant paid leave to the aggrieved person for a period up to 3 months; or/and
- restrain the respondent from reporting on the work performance of the aggrieved person or writing their performance appraisal report and assign the same to another employee of sufficient seniority and who is familiar with the aggrieved person’s performance at work; or/and
- Grant such other relief to the aggrieved person as the CC deems fit in the circumstances.
9. INQUIRY REPORT
- Upon conclusion of the inquiry, the CC shall submit a detailed and reasoned written report of its findings, within a period of ten days from the date of completion of inquiry, to the Director.
- A copy of the report shall be made available to the aggrieved person and the respondent.
- The inquiry report shall specify the details of the charge(s) against the respondent, the statements made and evidence presented in the inquiry and a discussion of the reasons upon which the findings arrived at by the Committee.
- The CC may pass any of the following orders:
- Where the CC concludes that the charges against the respondent have not been proved, it shall recommend to the Director that no action is required to be taken on the complaint
- Where the CC concludes that the charges against the respondent have been proved it shall recommend to the Director, to take action against the respondent for the misconduct of sexual harassment:
- by imposing a penalty as prescribed under Rule X of the present Rules; and
- To deduct from the salary or consultancy or earnings of the respondent such sum as determined in accordance with Rule XI, to be paid to the aggrieved person or her legal heirs as compensation.
- The Director shall act upon the recommendations of the CC within sixty days of receipt of the same.
When the CC arrives at the conclusion that the charges against the respondent have been proved it shall recommend to the Director any of the following penalties, depending on the misconduct and harm suffered by the aggrieved person:
- Written apology and/or undertaking of non-repetition;
- Reprimand or censure;
- Withholding of promotion;
- Withholding of one or more increments;
- Compulsory counseling and gender sensitisation;
- Carrying out community service as determined by the CC;
- Disallow the person from being associated with ALC;
- Disallow the person from providing services to any of the clients of ALC for a fixed period or permanently;
- Disallow the person from entering the ALC offices or attend events (meetings, trainings, etc) organized by ALC by declaring them persona non grata for a stipulated period;
- Compulsory resignation;
- Termination from service.
11. DETERMINATION OF COMPENSATION
For the purpose of determining the sum to be paid to the aggrieved person under sub-clause (4)(B) of Rule IX, the CC shall take into account the following criteria:
- mental trauma, pain, suffering or emotional distress caused to the aggrieved person;
- The loss in career opportunity due to the incident of sexual harassment to the aggrieved person and the trauma caused due to the same.
- Medical expenses incurred by the aggrieved person for physical, psychiatric or psychological treatment.
- The income and financial status of the respondent.
- Feasibility of such payment in lump sum or installments.
12. FALSE AND MALICIOUS COMPLAINTS
Where the CC arrives at the conclusion that the allegation against the respondent is malicious, or that the aggrieved person or any other person making the aggrieved person has made the complaint knowing it to be false, or have produced a forged or misleading document, it may recommend to the Director to take the actions against the aggrieved person or any other person who has made the complaint in line with the procedure and penalties prescribed in clauses VI and X and XI above.
Provided that the mere inability of the aggrieved person or aggrieved person to substantiate or provide adequate proof to prove her allegations of sexual harassment at the inquiry, cannot lead to an inference of it being a false or malicious complaint and will not attract action against the aggrieved person.
Provided further that no action shall be recommended against the aggrieved person until the malicious intent alleged against the aggrieved person is established through an inquiry in accordance with the prescribed procedure.
13. PROHIBITION OF PUBLICATION AND PENALTY FOR BREACH OF CONFIDENTIALITY:
- The contents of the complaint made under Rule VI (1) , the identities and addresses of the aggrieved person, respondent and all witnesses, any information relating to the process of conciliation or the settlement reached, the inquiry proceedings, the findings of the Inquiry Report or the recommendations of the CC, and action taken by the Director under these Rules and Procedures shall not be published, communicated or made known to the public, press and media in any manner.
- The Presiding Officer of the CC and the Director shall be responsible for ensuring that there is strict compliance with the Rule prohibiting publication or disclosure and maintaining confidentiality.
- Provided that the information regarding action taken and justice secured to any aggrieved person may be disseminated by the CC and the Director to create deterrence and awareness, without disclosing the name, identity, address or any other particulars that are likely to lead to the identification of the aggrieved person and the witnesses.
- Where any employee contravenes this clause, the Director shall recover a sum of Rs.5,000 by deducting the same from the salary or earnings of such employee.
- Explanation: The amount so recovered as penalty shall be used by the CC for the purpose of gender sensitisation and creating awareness about the Policy and Rules within ALC.
- Exception: If the aggrieved person goes public before filing a complaint with the CC, the same shall not prejudice the Committee members. Once a complaint has been given to the CC, the aggrieved person should preferably not resort to making the contents public till the inquiry is completed, unless there are compelling reasons for them to do the same, in the interests of justice, in which case, such reasons should be put forth by the Aggrieved person to the CC.