Tabassum files a sexual harassment complaint with her company’s IC. Amit, the Respondent is a star employee with an important client-facing role. Upon completing their inquiry, IC finds that the charges are conclusive. Amit refuses to acknowledge the impact of his actions.
Keeping in mind Tabassum’s mental trauma, IC recommends the termination of Amit’s employment contract. Given their responsibility to prevent sexual harassment from repeating in the future, IC justifies that this is an appropriate action. IC communicates its recommendation to the senior management who have the authority to execute it. However, the management decides to not take immediate action. They want to convene with other stakeholders on the way forward.
What does the law state?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates that once IC has communicated its recommendations to the employer, they must take action. Section 13, Chapter V states, The employer…shall act upon the recommendation within sixty days of its receipt by him.
What if the employer doesn’t take action?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states in Section 26, Chapter VII:
Where the employer fails to – take action under section 13…he shall be punishable with a fine which may extend to fifty thousand rupees.
What if the employer doesn’t take action post the 60-day timeline?
It can be interpreted as a violation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Why?
The Act mandates the employer to act on the IC’s recommendations within sixty days.
If Tabassum appeals against her employer, the court can consider her employer’s continued inaction as a repeat offense. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states in Section 26, Chapter VII:
(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to—
(i) twice the punishment…
(ii) cancellation of business license or withdrawal, or non-renewal, or approval, or cancellation of the registration… by the Government or local authority required for…his business.
What is the legal interpretation?
In the letter of the law, “recommendation” does not imply that action is based on the employer’s discretion. It only implies that IC is not the disciplining authority. An employment contract puts the employer in the position of a disciplinary authority. This puts the burden of acting on IC’s recommendation on the employer.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 invests the IC with the “same powers… vested in a civil court under the Code of Civil Procedure, 1908”. The IC is recognized as a quasi-judicial body. Therefore, when it comes to deciding on a fair course of action, its insights and perspectives hold the highest weightage.