To act or not to act: Legal conundrums of employer
Just as Harvey Weinstein’s infamous downfall hit a year’s mark, the #metoo movement has been refuelled in India. With women breaking their silence across the nation, bigwigs across spheres have been called out. The allegations — be it in the realms of Bollywood, media and politics or the good old IT sector — mostly cover workplace harassment. Amid the debate on the pros and cons of the #metoo campaign, what has fallen out of sight is, how employers are grappling with the movement and the related fundamental legal issues.
Sufficiency of an online post
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, allows workplace sexual-harassment complaints to be filed electronically. However, is a #metoo post on Twitter good enough for a company’s internal committee (IC) to initiate an inquiry? The short answer is no. For an IC to initiate proceedings, the law necessarily requires a written complaint to be filed with the IC. An IC cannot suo motu initiate an inquiry.
Another facet to the movement is addressing anonymous posts. The law requires a complaint to be filed by an aggrieved woman (with only a few exceptions such as mental/physical incapacity). By laying out a precise complaint mechanism, the scheme of the law provides no scope for ICs to act on anonymous #metoo posts against the company’s employees.
Dealing with time-barred complaints
While the chief goal of the #metoo movement is to etch out the magnitude of the issue and provide a platform for community healing, some victims have been encouraged to approach the concerned ICs. What calls for scrutiny here is the timing of the alleged incident. What is the fate of the innumerable complaints dating back to a few years ago? Can ICs probe into an incident if it allegedly took place, for example, in 2010?
Many are not mindful that the law prescribes a timeline of three months to file complaints. Although ICs can extend this timeline, the extension cannot exceed another three months. In the four-odd years that the current law has seen the light of the day, the judiciary has tried a ton of cases under it. A common theme that emerges is that Indian courts are heavily inclined towards adhering to the timeline prescribed under law. Based on what the Delhi High Court held in 2014, this inclination appears to stem from a notion that a balance needs to be struck and applied equally to both, the complainant and the accused, especially in matters barred by limitation. The only exception to this is where owing to the company's failure to constitute an IC a complaint could not be filed within three months. In such cases, while computing the limitation period, courts have discounted the period where there was no forum.
Time-barred complaints could be a double-edged sword to employers. There is ample scope for admonishment on the media if a company fails to act on complaints (filed with the IC) citing reasons of limitation. If a company accepts a time-barred complaint, there is always a risk of being challenged under law to admitting and initiating an inquiry into timebarred complaints. One feasible way to redress timebarred complaints is for employers to internally deal with the complaint — not through the IC inquiry mechanism, but by initiating a separate disciplinary inquiry against the accused employee. There is precedent from a 2016 case in which a company apportioned the allegations between the IC and its HR department. While allegations falling within the three-month limit were tried by the IC, the time-barred allegations were referred to trial by a disciplinary authority (not under law, but as per the company’s service rules). The Bombay High Court expressed no apparent concerns on the company's divide-and-inquire process of handling the complaint, however, this may well be the case because the accused did not challenge the process adopted by the company. Although such a process could be regarded as uncharted waters from a strict judicial perspective, it is an approach that companies could consider. For this, it becomes imperative to ensure that the HR policies are structured to offer much-needed flexibility.