Posted by Jehosh Paul
Since the commencement of the Coronavirus lockdown, there has been a paradigmatic shift from what was initially considered a workplace. Workplace in the traditional sense meant an office or an industry. However, alongside Coronavirus lockdown came the government advisory of encouraging employees to work from home and as time passed by, work from home became the modus operandi for a vast majority of employees.
This paradigmatic shift resulting in working from home departs from the traditional meaning of workplace and, home is simultaneously accorded the status of a workplace. These developments raise pertinent questions such as,
1) Whether the Prevention of Sexual Harassment at Workplace Act is still applicable in case of sexual harassment occurring through online medium while working from home?
2) What are the forms of non-physical sexual harassment that the Act recognises?
3) What are the appropriate legal remedies available to the victims of sexual harassment online while the courts have partially shutdown owing to the Coronavirus lockdown? This article answers the same in the following paragraphs.
The POSH Act, 2013 recognises work from home.
Section 2(o) of the Act defines “workplace” in an inclusive and non-exhaustive manner which under its subclause (vi) includes ‘a dwelling place or a house’. Although, the spirit of the Act refers to the domestic servants and helpers who are employed in a dwelling place or a house when it means that workplace includes a dwelling place or a house.
Yet the unprecedented extraordinary times of Coronavirus lockdown and on application of literal rule of interpretation, the meaning of workplace shall also encompass work from home under Section 2(o)(vi). Therefore, sexual harassment occurring through online medium while working from home falls under the scope of Prevention of Sexual Harassment at Workplace Act, 2013.
The Forms of Non-Physical Sexual Harassment that the Act recognises.
The second most pertinent question that is likely to arise is that, since there is no physical element involved while working from home, what are the kinds and forms of sexual harassment that can occur while working from home?
The answer to the kinds and forms of sexual harassment that can occur while working from home can be found under section 2(n) of the Act, which is yet another non-exhaustive and inclusive clause defining “sexual harassment”. The relevant subclauses here are subclause ii, iii, iv and v of section 2(n) which deals with the expressed or implied unwelcome acts or behaviour demanding or requesting sexual favours, making sexually coloured remarks, showing pornography and any other unwelcome verbal or non-verbal conduct of sexual nature, respectively.
Therefore, such are the instances of sexual harassment that are covered under the Prevention of Sexual Harassment at Workplace Act, 2013 which one can encounter online while working from home.
The Redressal Mechanism.
The mechanism for complaints redressal under the Act is as follows:
1) The aggrieved woman must submit her complaint to the Internal Complaints Committee or Local Complaints Committee within three months of the last incident.
2) The respondent will be issued a notice within seven days of the receipt of complaint.
3) Inquiry as per Chapter V of the Act must be completed within ninety days.
4) The report of the enquiry will be submitted to the employer or district officer within ten days.
5) Within sixty days the district officer or the employer must fully implement the orders.
The remedies available under the Prevention of Sexual Harassment at Workplace Act, 2013 are – interim relief and/or compensation.
Section 12 of the Act provides that the Internal Complaints Committee and Local Complaints Committee can provide interim relief during the pendency of the inquiry. The interim relief can be in the form of,
a) transfer of the aggrieved woman or the respondent to any other workplace,
b) granting leave to the aggrieved woman up to a period of three months, or
c) any other relief that the committee deems fit.
However, in the case of work from home, the interim relief that can be provided by the committee will be,
a) transfer of either the aggressor or the aggrieved woman to a different team or project where the nature of the work will not necessitate both parties to interact with each other, or
b) any other orders restraining the aggressor from trying to contact the aggrieved woman.
Section 13 provides that the committee can award compensation after the allegations have been proved by,
1) deducting the salary of the respondent,
2) directing the respondent to pay compensation and if the respondent fails to pay the compensation then the committee can forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
These are the remedies available and the redressal mechanism under the Prevention of Sexual Harassment at Workplace Act, 2013 which can be facilitated and enforced through online medium. The Internal Complaints Committee as well as the Local Complaints Committee can receive complaints online and conduct an inquiry by collecting the proofs through online medium as well as award an interim relief or compensation which can be enforced by the employer while crediting salary in the employees’ accounts. Hence, we do have a mechanism which combats sexual harassment at workplace in a timebound and efficient manner without being constrained by physical obstacles blocking access to justice due to the Coronavirus lockdown.
However, in general circumstances, three legislations deal with sexual harassment online. They are the Indian Penal Code, 1860; the Prevention of Sexual Harassment at Workplace Act, 2013 and the Information Technology Act, 2000. But, to invoke the penal provisions under the Indian Penal Code, the victim must first file a FIR by physically visiting the police station which can be a very tedious task to perform during the lockdown. Few select states have the facility to file an online FIR but the partial shutdown of the courts makes the whole exercise redundant.
The Information Technology Act, 2000 which also deals with sexual harassment made through online medium faces a similar roadblock with the tribunals constituted under the Act being shut down due to the Coronavirus lockdown.
Therefore, an employee facing sexual harassment online while working from home has the only recourse of filing a complaint under the Prevention of Sexual Harassment at Workplace Act, 2013 and thus is the importance of the instant Act during the Coronavirus lockdown in combating sexual harassment at workplace i.e., while working from home for a corporation or industry.
Jehosh Paul serves as Research and Outreach Aide at the Office of Ms. Apsara Reddy, National General Secretary, All India Mahila Congress. (Views are personal)
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Featured Image Source: The Hindu