Duty of Employer Under the Sexual Harassment of Women at Workplace

The principles of agency do not apply to The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, referred to as SHWW Act hereafter, which means that SHWW Act doesn’t impose any statutory, criminal as well as civil, liability on the employer for the acts of sexual harassment by employees. As a rule, an employer is not vicariously liable for employees creating a hostile work environment. In such cases, the standard of proof by courts is the “knowledge standard” to assess employer liability. If the employer received actual or constructive knowledge about the harassment and did nothing to prevent it or if the employer fails to create a “safe system of work.”

So, from an employer perspective, if he follows the Duties provided under the SHWW Act, he shall be relieved of any vicarious liability as per the current provisions. The duties envisaged by the SHWW Act for every employer shall be.

1. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
2. display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
3. organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed.
4. provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
5. assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
6. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
7. provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
8. cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
9. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
10. monitor the timely submission of reports by the Internal Committee.

SHWW provides that failure to set up an ICC is a criminal offence per section 26(1) and would constitute a fine of INR 50,000/-. Subsequent or repeat offences invite twice the said punishment and can lead to cancellation of license or withdrawal of registration required for carrying on business as per section 26(2). The offence is non-cognizable and cannot be made known by a court except on a complaint by an aggrieved woman or person authorized by ICC/LCC.

The employer is also obliged to consider the ICC’s recommendation and take action on such recommendation within the statutory time frame provided. Where the ICC recommends an interim protective order to be passed in favour of the aggrieved woman, the employer must comply and report the compliance to the ICC.