Procedure for conducting fair inquiry in Sexual Harassment cases

 Article

Procedure for conducting fair inquiry in Sexual Harassment cases 

The complainant is required to submit the sexual harassment complaint in writing within three months of the last alleged incident to the Complaints Committee or any other person designated by the organization/District Officer (i.e. Nodal Officer) to receive and manage complaints of sexual harassment. After receipt of a sexual harassment complaint a fair, prompt, and impartial inquiry needs to be done by the Complaints Committee. It should help create an environment of trust and confidence throughout the inquiry and follow the principles of natural justice.

 

The Hand Book on Sexual Harassment of Women at Workplace prepared by Government of India Ministry of Women and Child Development provides as under:

 

Acknowledge receipt of the complaint: After receipt of the complaint it should be acknowledged and reviewed:

 

i       in the context of workplace that the sexual harassment complaint is to be met with under the Act, such as, Service Rules, Workplace Policy, Vishaka Guidelines and related laws;

ii      to have clarity in the complaint, where required;

iii    to seek additional information needed, if any, from the complainant.

 

Meet and talk to the complainant to explore options for formal and informal resolution: The complainant may contacted and be informed about the ensuing process and the informal or formal options available to redress the grievance.

 

Informal mechanism: If the complainant chooses to adopt the informal process to resolve her complaint/experience of workplace sexual harassment, then it is the responsibility of the person designated to receive and manage the Complaints Committee to explore enabling ways to address the complaint.

 

This can include counselling, educating, orienting, or warning the respondent to promptly stop the unwelcome behaviour or appointing a neutral person to act as a conciliator between the parties to resolve the complaint through conciliation.

 

However, before recommending conciliation, the Committee must assess the severity of the situation and if necessary, advise and enable the complainant to opt for the formal route.

 

At no point, the Complaints Committee will advise the complainant to resolve the matter directly with the respondent. Where such an informal process is successful, such resolution is to be recorded by the Conciliator and forwarded to the ICC/LCC who in turn will forward the same to the employer/District Officer for further action based on the resolution.

 

Employers/District Officers are responsible for taking steps to ensure that the complainant is not subject to any backlash. The choice of a formal process rests with the complainant even if the person responsible for managing the complaint believes that this can be resolved through an informal process.

 

Formal mechanism: If the complainant opts for formal redress, or the nature of the complaint is serious which calls for formal redress, then the Complaints Committee should respond to the complaint. The Complaints Committee/s members must be free of any conflict of interest with either of the concerned parties or with the outcome.

 

It needs to be ensured that the independent third party Member has sound knowledge, skill, and experience in dealing with workplace sexual harassment complaints.

 

Respondent be informed and his response be sought: The Complaints Committee will inform the respondent in writing that a complaint has been received against him, within seven days of receiving a complaint, or as per the procedure provided in the Service Rule.

 

The respondent will have an opportunity to respond to the complaint in writing within ten days thereafter.

 

Prepare proper Inquiry File: A sound inquiry relies on sound preparation. This includes taking into account the following steps:

 

i.      Documentation: Create an independent confidential file of the complaint and all subsequent related documentation.

 

ii.    Review law & policy: Have a clear knowledge and understanding of the Act/Rules as well as the relevant Service Rules, Workplace Policy, Vishaka Guidelines, existing practices and related laws.

 

iii.   Make a list of events and witnesses: Make a list of all the dates and events relating to the written complaint as well as the names of witnesses, where applicable.

 

iv.   Supporting documents: Obtain and review all supporting documents relevant to the complaint, including those presented by the complainant and the respondent.

 

v.    Act promptly: Create an action plan. This can be used as an initial checklist to ensure that all of the critical elements are covered. It includes:

a. The names of the parties and witnesses to be interviewed

b. Any documentary support that needs to be examined

c. Timeline

 

Interim measures: While a complaint is pending inquiry, a complainant can make a written request for her transfer or the transfer of the respondent, or for leave up to three months. She can also request the Complaints Committee to restrain the respondent from reporting on her work performance or writing her confidential report or supervising her academic activities, in case she is in educational institution.

 

Even in the absence of such a request, the Complaints Committee must take corrective action. It is essential to take these actions in order to prevent potential ongoing sexual harassment.

 

Provide support & assistance to complainant: The Complaints Committee needs to maintain clear, timely communication with the parties throughout the process. It should provide any specific assistance to the complainants that she may require, such as counselling, addressing health related concerns or sanctioning of leave.

 

Prepare an interview plan for the hearing complainant, witnesses, and respondent:

 

i.      Based on the results of the previous steps and before conducting interviews, the Complaints Committee should decide which issues need to be pursued for questioning.

ii.    Interviews are meant to obtain information that is relevant to the complaint from individuals.

iii.   Interviews should be conducted with each person separately and in confidence. The complainant and the respondent should not be brought face to face with each other.

 

Assess the completeness of the information collected: The Complaints Committee should review the information gathered and their factual relevance to each aspect of the complaint. This will help determine whether there is enough information to make a finding on the complaint.

 

Reasoning: Once the information and review is complete, the Complaints Committee will make its reasoned finding(s), which involves having to:-

 

·        Identify the substance of each aspect of the complaint.

·       Determine, whether or not, on a balance of probability, the unwelcome sexual harassment took place.

·  Check that such behaviour/conduct falls within the definition of sexual harassment set out in the relevant Act/Rules, Policy, Service Rules or law.

·  Comment on any underlying factor(s) that may have contributed to the incident.

 

It should create a timeline to help establish the sequence of events related to the complaint and compare similarities and differences within each of the statements made by the interviewees.

 

Share findings and recommendations: Based on the above, the Complaints Committee must arrive at its findings of whether the complaint is upheld, not upheld or inconclusive. Where both the parties are employees, before finalizing the findings, the ICC/LCC shall share its findings with both the parties and provide them an opportunity to make representation against it before the Committee.

 

Recommendations: Based on its findings, the Complaints Committee shall then make appropriate recommendations which may include:

 

1. Where the Complaints Committee is unable to uphold the complaint, it shall recommend no action.

 

2. Where the Complaints Committee upholds the Complaint, it may recommend such action as stated within the relevant Policy or Service Rules, which may include a warning to terminate.

 

In case service rules do not exist, recommended action may include:

i. Disciplinary action, including a written apology, reprimand, warning, censure;

ii.    Withholding promotion/ pay raise/ increment;

iii.   Termination;

iv.   Counselling;

v.    Community service.

 

3. The Complaints Committee may also recommend financial damages to the complainant, while deciding the amount they shall take into consideration:

i.      Mental trauma, pain, suffering and emotional distress caused;

ii.    Medical expenses incurred;

iii.   Loss of career opportunity;

iv.   Income and financial status of the respondent.

If the amount is not paid it can be recovered as an arrear of land revenue.

 

4. The Complaints Committee can also give additional recommendations to address the underlying factors contributing to sexual harassment at the workplace.

 

Writing of report: The Complaints Committee will prepare a final report that contains the following elements:

a.    A description of the different aspects of the complaint;

b.    A description of the process followed;

c. A description of the background information and documents that support or refute each aspect of the complaint;

d.    An analysis of the information obtained;

e.    Findings as stated above;

f.     Recommendations.

 

Time frame: The report must be completed within 90 days and a final report submitted to the Employer or District Officer (as the case may be) within ten days thereafter. Such report will also be made available to the concerned parties. The Employer or District Officer is obliged to act on the recommendations within 60 days.

 

Appeal: Any person not satisfied with the findings or recommendations of the complaints committee or non-implementation of the recommendations, may appeal in an appropriate court or tribunal, as prescribed under the Service Rules or where no such service rules exist, in such manner as may be prescribed.

 

Given that most workspaces today are gender unequal and male-dominated, it is important that complaints by women be treated fairly and not dismissed. The mere inability to substantiate a complaint or provide adequate proof will not attract legal action against the complainant.

 

Avoid false or malicious complaint: Making a false or malicious complaint or producing a forged or misleading document is an offence.