FAQ- eMash

  1. When is anorganisation required to constitute an Internal Committee [IC]?

Any establishment that has 10 or more employees is required to constitute an IC.

  1. Can an employee be personally liable for sexual harassment?

Yes, if the IC finds a person guilty the liability is on the wrong doer. If the Respondent is found guilty, he is liable to pay an amount of monetary compensation (or any other penalty) as recommended by the IC.

  1. What is the process once an employee has officially raised a complaint?

Once a complaint has been filed, the IC will initiate the inquiry process as laid down by the law.

  1. I've been accused of harassment but I don't think I did anything wrong. What should I do?

The IC shall conduct an inquiry in a fair and just manner by giving equal opportunity to both the parties to present their case. If the complaint is proved to be false and malicious, the person filing a false complaint will be penalized.

  1. Can I harass someone without intending to?

Yes, sexual harassment can occur even if the Respondent had no intention of harassing the Complainant. The impact of the behaviour on the person subjected to it is a deciding factor as opposed to whether there is an intention to sexually harass. Thus, statements such as “I meant it as a compliment”, “I did not realize she was offended” do not prevent the behaviour from being considered sexual harassment if a reasonable person would have acknowledged that the behaviour was unwelcome.

  1. What if an employee finds out that a colleague is a victim of sexual harassment but does not want to lodge a complaint?

Employees who are aware of such a situation may report the matter to the IC. The IC will then meet the victim/complainant and decide on the further course of action.

  1. Do sexual harassment laws apply to situations outside the scope of employment?

No, sexual harassment laws only apply to practices in the work environment or workplace-related environments such as company-sponsored meetings, business trips, etc. The determining factor is the relation or connection with work. Hence, if it is a Whatsapp group with only team members this could also come under the scope depending on the facts and circumstances.

  1. Can both men and women be victims of workplace sexual harassment?

While both men and women can be victims of sexual harassment, as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, only a woman can file a Complaint. But asit is the duty of anemployer to redress any grievances at the workplace, irrespective of gender, any aggrieved person can raise a grievance as per the applicable policies at the workplace.

  1. Can the Complainant file a police complaint in parallel to filing a complaint with the IC?

Yes, the Complainant has the right to file a police complaint in the case of sexual harassment. It is the duty of the employer to assist the complainant in filing the complaint.

  1. Can managers directly investigate a sexual harassment complaint?

No, managers do not have the jurisdiction to conduct an inquiry into a complaint of sexual harassment. They need to direct the Complainant to the IC.

  1. What if the respondent argues that their friendship made it reasonable for him to assume that sexual advances would not be “unwelcome”?

This could be in a situation where the two parties had a close friendship or often socialised together, albeit platonically. If one party makes a sexual advance and is accused of sexual harassment, he will almost certainly claim that he interpreted their closeness as a sign that a sexual relationship would be welcome; or at least that had no reason to think that his sexual advances would cause offence. The moment it is conveyed to the Respondent that his advances are unwelcome he has a duty to stop the behaviour.

Similarly, a supervisor may start by giving his secretary gifts and if they are accepted he may argue later that he viewed this as a “welcoming” sign. In fact, the secretary may have accepted the gifts only because she did not want to offend her boss or because she thought they were completely platonic. If one person is in a position of power or trust, it would invariably fall under the scope of sexual harassment at the workplace.

  1. Is sexual harassment based solely on the complainant’s perception of whether the conduct was offensive?

The complainant’s perception has to be given significant regard. This means that in the vast majority of circumstances the complainant’s view that it was offensive to her should be accepted. However, it may not be sexual harassment if no reasonable person, with the same perceptions and sexual attitudes as the complainant, would regard the conduct as capable of damaging the complainant’s dignity or creating an offensive environment.

Once the Committee decides that conduct was unwelcome, it must then ask whether “a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, humiliated or intimidated”.

  1. What if there is a complaint and the female complainant faces a threat outside of the workplace?

The complainant can file an FIR with the police. If the incident is connected or related to work for which she faces a threat outside, it is the duty of the employer to assist her in filing such a complaint.

  1. How can an employee make sure that his or her conduct and that of his employees is appropriate at all times?
  • Avoid behaviour that demeans, degrades, abuses or shows disrespect to any individual.
  • Recognize that the same remarks or gestures that seem acceptable to some people may be embarrassing or offensive to or unwanted by others.
  • Consider how you would react if the same behaviour were directed towards your spouse or family member.
  • Ask yourself whether you would act the same way in front of your spouse, significant other, or child.
  • Ask yourself how you would feel if your behaviour were captured on video, reported in a newspaper, or featured on the nightly news.
  1. Can the company guarantee complete confidentiality when an employee raises a concern?

The IC will take great effort to maintain the confidentiality of the complainant. However, there could be situations where the company must disclose the concern and investigation to certain employees strictly on a "need to know" basis.

During the inquiry, all of the employees involved are reminded that absolutely no reprisals may be taken against the complainant and all information must be kept strictly confidential.