Skip to main content
Sabrang
Sabrang
India Women

Are you protected by anti-Sexual Harassment laws when you work from home?

With virtual office space becoming or about to become the order of the coming days, it is important to keep the work space safe and secure for all employees especially women.

Divya Nair 12 Jun 2020

OfficeImage Courtesy:thehindu.com

It is pertinent to point out that the rules and regulations that govern the company’s employees in the office work space as per the company policy including the application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as (the ‘Act’) would be extended to the Work From Home (WFH) scenario. The safeguards, protection and precautions need to be in place along with the process and procedure for escalation of the grievances and complaints of the employees through the Internal Committee (IC) of the company.

The definition of the word harassment doesn’t mean just an act with sexual overtones. It would also include to mean any act by a co-worker which makes the work space including virtual uncomfortable for the employee in question, whether it is with language, reference to religion, caste, regional differences, language, action or behaviour including but not limited to discrimination of all kinds.  The virtual distance of the employees shouldn’t be a deterring factor for raising issues that fall under the Act and also for the company to act on the complaints raised. Under the Act, the workplace ( Section 2(o) ) is defined more in a manner of where one is employed rather than the actual physical place of employment. The presence of words “department”, “organisation”, “establishment” are examples of this.  Violence and Harassment Convention, 2019 (in particular Article 3) (https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190) gives a wider definition to the term ‘workplace’. The ‘employer centric’ , if one may say so, approach to the definition of ‘workplace’ under the Act often leads to issues with regard to the applicability of the Act to incidents of harassment in places which are not within the confines of a space used normally for work by an employer. Therefore, the concept of notional extension will come into play. 

Examining the current scenario where ‘office’ has shifted from brick and mortar high rises to residences for millions across the world, the traditional meaning of ‘workplace’ has to be redefined. WFH, the latest acronym to join the lexicon of the millennials, has been followed by companies across the globe for some years now mainly to bring down cost, improve employee happiness or for scoring brownie points on reducing carbon emission.  Covid -19 has made WFH the new norm. The important issues that needs to be considered in this new normal  are:

      a. The present framework with its limitations referred above and short of any legislative intervention, has enough play in its joints to adapt to the sudden shift that we are experiencing. Sexual harassment, misogyny, discrimination, inappropriate behaviour  can all manifest in a virtual office  and their definition would apply on all of us in a virtual office. Any form of biased, regressive or discriminatory behaviour would attract the same penal law as it would in an office space as is commonly understood. Apart from the provisions of the Act, such acts of inappropriate behaviour which would amount to harassment may also attract provisions of the IT Act, 2000. Thankfully there are some precedents that have shown the way in this regard. In the case of  Saurabh Kumar Mallick Vs CAG ( MANU/DE 0956/2008), the Delhi High Court held that the expression 'workplace' is to be defined having regard to the objective with which  the Vishakha Judgment was pronounced .Keeping in view the objective behind the said judgment, a narrow and pedantic approach cannot be taken in defining the term 'workplace' by confining the meaning to the commonly understood expression "office" that is a place where any person of the public could have access. 

      b. Having said that, the onus on monitoring and reporting the said discriminatory/harassing behaviour lies with the employee who is a victim and also the co-workers. All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced. The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Any act, statement, action that puts a co-worker in an uncomfortable position particularly because of her gender, familial obligations amongst others would constitute as discrimination. Extra care should be given to note and observe the conduct of every employee to note any out of the ordinary behaviour or sudden lack of interest in the work or interaction with other co-workers.

      c. The company also has to maintain an open-door policy regarding any grievances and complaints. All the protocols that were followed and observed during the regular working days in the office space should be followed during the WFH scenario too. All employees should be encouraged to approach the HR/IC in the event of any untoward incidents. There should not be any deviance from the standard operation procedures that would have been followed in the event of any complaint/grievance that would have been raised in similar circumstances when the offices would have been functioning before the WFH became a new normal. 

      d. In the case a complaint has been brought to the attention of the HR/IC, online interviews can be conducted.  The confidentiality of the victim statements and evidence collected should be maintained at all times. All statements can be signed off virtually. All evidence can be collated and filed using an online medium. All process(s) that would be followed should be followed without any lacunae or in any manner that would adversely affect the victim’s case. Both the parties should be given a fair and unbiased forum to present their case. The IC should be involved from the initial stage. 

      e. All women employees also have recourse to file a complaint through She-Box. It is an effort by the Government of India to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment under the Act. Once a complaint is submitted to the ‘She-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter. More information can be found at http://www.shebox.nic.in/user/about_shebox

To sum it up, the HR/IC should communicate clear and distinct policies, rules and regulations against harassment and discriminatory behaviour. These kinds of behaviour should be clearly termed as prohibitory behaviour. The virtual workspace should be a safe workspace for the employees.  The assumption that an employee working out of their homes are in a safe space would be an erroneous one. The role of the IC/HR shouldn’t just be for redressal but also preventive. A constant re-affirmation of the company’s policies on harassment should be sent across to all employees and a no tolerance stand should be taken. An awareness and sensitisation guidance session or webinar should be conducted with all employees concerned. Protection of employees from all forms of harassment and discrimination is the duty of the Companies. Nulla Excusatio Estne Officium Tuum Exsequaris

Divya Nair, is an advocate working in Delhi. A graduate of University of Kerala, she began her career as a junior litigating lawyer in the Supreme Court and later moved on as in-house legal counsel to a media house based in Delhi. She is currently practising law in Delhi. She can be reached at divyainhere@gmail.com

Are you protected by anti-Sexual Harassment laws when you work from home?

With virtual office space becoming or about to become the order of the coming days, it is important to keep the work space safe and secure for all employees especially women.

OfficeImage Courtesy:thehindu.com

It is pertinent to point out that the rules and regulations that govern the company’s employees in the office work space as per the company policy including the application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as (the ‘Act’) would be extended to the Work From Home (WFH) scenario. The safeguards, protection and precautions need to be in place along with the process and procedure for escalation of the grievances and complaints of the employees through the Internal Committee (IC) of the company.

The definition of the word harassment doesn’t mean just an act with sexual overtones. It would also include to mean any act by a co-worker which makes the work space including virtual uncomfortable for the employee in question, whether it is with language, reference to religion, caste, regional differences, language, action or behaviour including but not limited to discrimination of all kinds.  The virtual distance of the employees shouldn’t be a deterring factor for raising issues that fall under the Act and also for the company to act on the complaints raised. Under the Act, the workplace ( Section 2(o) ) is defined more in a manner of where one is employed rather than the actual physical place of employment. The presence of words “department”, “organisation”, “establishment” are examples of this.  Violence and Harassment Convention, 2019 (in particular Article 3) (https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190) gives a wider definition to the term ‘workplace’. The ‘employer centric’ , if one may say so, approach to the definition of ‘workplace’ under the Act often leads to issues with regard to the applicability of the Act to incidents of harassment in places which are not within the confines of a space used normally for work by an employer. Therefore, the concept of notional extension will come into play. 

Examining the current scenario where ‘office’ has shifted from brick and mortar high rises to residences for millions across the world, the traditional meaning of ‘workplace’ has to be redefined. WFH, the latest acronym to join the lexicon of the millennials, has been followed by companies across the globe for some years now mainly to bring down cost, improve employee happiness or for scoring brownie points on reducing carbon emission.  Covid -19 has made WFH the new norm. The important issues that needs to be considered in this new normal  are:

      a. The present framework with its limitations referred above and short of any legislative intervention, has enough play in its joints to adapt to the sudden shift that we are experiencing. Sexual harassment, misogyny, discrimination, inappropriate behaviour  can all manifest in a virtual office  and their definition would apply on all of us in a virtual office. Any form of biased, regressive or discriminatory behaviour would attract the same penal law as it would in an office space as is commonly understood. Apart from the provisions of the Act, such acts of inappropriate behaviour which would amount to harassment may also attract provisions of the IT Act, 2000. Thankfully there are some precedents that have shown the way in this regard. In the case of  Saurabh Kumar Mallick Vs CAG ( MANU/DE 0956/2008), the Delhi High Court held that the expression 'workplace' is to be defined having regard to the objective with which  the Vishakha Judgment was pronounced .Keeping in view the objective behind the said judgment, a narrow and pedantic approach cannot be taken in defining the term 'workplace' by confining the meaning to the commonly understood expression "office" that is a place where any person of the public could have access. 

      b. Having said that, the onus on monitoring and reporting the said discriminatory/harassing behaviour lies with the employee who is a victim and also the co-workers. All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced. The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Any act, statement, action that puts a co-worker in an uncomfortable position particularly because of her gender, familial obligations amongst others would constitute as discrimination. Extra care should be given to note and observe the conduct of every employee to note any out of the ordinary behaviour or sudden lack of interest in the work or interaction with other co-workers.

      c. The company also has to maintain an open-door policy regarding any grievances and complaints. All the protocols that were followed and observed during the regular working days in the office space should be followed during the WFH scenario too. All employees should be encouraged to approach the HR/IC in the event of any untoward incidents. There should not be any deviance from the standard operation procedures that would have been followed in the event of any complaint/grievance that would have been raised in similar circumstances when the offices would have been functioning before the WFH became a new normal. 

      d. In the case a complaint has been brought to the attention of the HR/IC, online interviews can be conducted.  The confidentiality of the victim statements and evidence collected should be maintained at all times. All statements can be signed off virtually. All evidence can be collated and filed using an online medium. All process(s) that would be followed should be followed without any lacunae or in any manner that would adversely affect the victim’s case. Both the parties should be given a fair and unbiased forum to present their case. The IC should be involved from the initial stage. 

      e. All women employees also have recourse to file a complaint through She-Box. It is an effort by the Government of India to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment under the Act. Once a complaint is submitted to the ‘She-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter. More information can be found at http://www.shebox.nic.in/user/about_shebox

To sum it up, the HR/IC should communicate clear and distinct policies, rules and regulations against harassment and discriminatory behaviour. These kinds of behaviour should be clearly termed as prohibitory behaviour. The virtual workspace should be a safe workspace for the employees.  The assumption that an employee working out of their homes are in a safe space would be an erroneous one. The role of the IC/HR shouldn’t just be for redressal but also preventive. A constant re-affirmation of the company’s policies on harassment should be sent across to all employees and a no tolerance stand should be taken. An awareness and sensitisation guidance session or webinar should be conducted with all employees concerned. Protection of employees from all forms of harassment and discrimination is the duty of the Companies. Nulla Excusatio Estne Officium Tuum Exsequaris

Divya Nair, is an advocate working in Delhi. A graduate of University of Kerala, she began her career as a junior litigating lawyer in the Supreme Court and later moved on as in-house legal counsel to a media house based in Delhi. She is currently practising law in Delhi. She can be reached at divyainhere@gmail.com

Related Articles

Theme

Delhi HC

Hate Speech and Delhi Pogrom 2020

A spate of provocative speeches, that amount to hate speech in law and should be prosecuted allowed blood letting to spill on the streets of north east Delhi in February-March 2020
hashimpura

Hashimpura Massacre

The Lemmings of Hashimpura
summer

Summer Culture

Our first summer culture bouquet features fiction from Syria and Iraq and poetry and art from Palestine.
khoj

Teaching Without Prejudice

Report of the CABE Committee on 'Regulatory Mechanisms for Textbooks and Parallel Textbooks Taught in Schools Outside the Government System

Campaigns

Thursday

25

Jun

Bhubaneswar

Monday

13

Jan

Nationwide

Videos

Jobless shoe polish workers in Mumbai face risk of starvation

The livelihoods of almost 35,000 shoe polish workers in Mumbai are at risk as they face possible starvation amidst the lockdown. Entirely dependent on the earnings of Mumbai's millions of daily local train passengers, they are now being mistreated and asked to vacate the station premises by the railway authorities. Manohar Das, a shoe polish worker, appeals to the authorities for relief.

Jobless shoe polish workers in Mumbai face risk of starvation

The livelihoods of almost 35,000 shoe polish workers in Mumbai are at risk as they face possible starvation amidst the lockdown. Entirely dependent on the earnings of Mumbai's millions of daily local train passengers, they are now being mistreated and asked to vacate the station premises by the railway authorities. Manohar Das, a shoe polish worker, appeals to the authorities for relief.

IN FACT

Analysis

Delhi HC

Hate Speech and Delhi Pogrom 2020

A spate of provocative speeches, that amount to hate speech in law and should be prosecuted allowed blood letting to spill on the streets of north east Delhi in February-March 2020
hashimpura

Hashimpura Massacre

The Lemmings of Hashimpura
summer

Summer Culture

Our first summer culture bouquet features fiction from Syria and Iraq and poetry and art from Palestine.
khoj

Teaching Without Prejudice

Report of the CABE Committee on 'Regulatory Mechanisms for Textbooks and Parallel Textbooks Taught in Schools Outside the Government System

Archives