Handling Third-Party Sexual Harassment Complaints: What Steps Should We Take?

We received a complaint letter (Third-party complaint) stating that she noticed many times, some group of male employees giving sexually suggestive comments on female employees who go for lunch to the canteen.

At this juncture, I need clarifications on:

1. Is it handled by ICC?
2. If yes, according to the POSH Act, what are the steps to be adapted for the inquiry?

With warm regards

Addressing Workplace Harassment

What is happening at your company is unacceptable. Any woman, whether employed as a regular employee or as a casual, temporary, or outsourced employee, has the right to live with dignity. If salacious comments are made against any woman employee, it merits investigation.

Before providing a solution to your challenge, please confirm what you mean by "third-party complaint."

Solution to the Challenge

Yes, the matter falls within the purview of POSH, and nowadays it is not ICC but just IC (Internal Committee). You may call the complainant to your office and ask her to gather material evidence. For this, she may sit reasonably close to the employee and record the conversation. Most Android phones have built-in apps for recording, and additional apps can be downloaded as well. However, instruct the woman employee to check the maximum duration for recording. If the comments have a sexual undertone, advise the woman employee to confront the individual making such remarks. While confronting such employees, she should be polite but firm and should not lose emotional control. Let her not reveal that the conversation is being recorded.

I suggest gathering material evidence to strengthen the case. Once she has incontrovertible evidence, she should approach HR once again with the audio clip. HR can then proceed as per the procedures outlined in the POSH Act.

Thanks,

Dinesh Divekar

You can just record the audio or audio with video and submit the same as proof to HR in writing. Make sure that the information is not passed on to anyone.

Filing a Complaint of Sexual Harassment

Any aggrieved woman can file a complaint of sexual harassment to the Internal Committee (IC) within three months of the incident. The period within which one can file the complaint can also be extended to another period of three months.

Also, where the aggrieved woman is unable to make a complaint due to her physical incapacity, her legal heir, relative or friend, co-worker, or an officer of the National Commission for Women or State Women’s Commission may make a complaint to the IC on her behalf, with her permission. If the woman is suffering from mental incapacity, a qualified psychiatrist or psychologist, or the guardian or authority under whose care she is receiving treatment or care, can file a complaint before the IC.

Ensuring a Safe Workplace Environment

Besides inquiry into the matter by the team of IC, it is important to bring conspicuous places under CCTV surveillance. This is the time to raise the confidence of the women employees by the management by holding a meeting to demonstrate that the management is serious about addressing harassment as reported.

Dear Mr. Prabhat Ranjan Mohanty,

You have outlined the procedure to file a complaint of sexual harassment, but many times proving the misconduct becomes difficult due to the lack of impeccable evidence. By the way, this is just a case of sexual innuendos. What about a proper rape case itself? The conviction rate in rape cases in India is just 25%.

Our judicial system has a tenet: "no person should be held guilty unless proved." While this tenet might have raised the moral standing of the judicial system, it has also helped the criminals as proving guilt is not that easy in India. Secondly, much depends on the forcefulness with which the cases are represented.

Thanks,

Dinesh Divekar

Handling a Sexual Harassment Complaint

The receipt of a complaint is the starting point for action in a sexual harassment case. If the complaint names specific individuals, action can be initiated immediately. However, if it is a general complaint without naming anyone, further evidence, as suggested by Dinesh Divekar Sir, could be gathered.

If the complaint has come from a female employee who feels harassed, even if it was not directed against her, it suffices to be a complaint under the Act. Even if she is not targeted, it is not to be treated as a third-party complaint requiring further corroboration and can be proceeded by the Complaints Committee.

The complaint is to be treated as the charge sheet, and the accused employees can be called to explain their actions in the matter. The committee can also consider the need for any interim action, such as transferring the accused employees to work areas that are not on the way to the canteen, sending a strong message.

Thereafter, depending on the response of these employees, further steps towards adducing evidence in support of the charges of sexual harassment can be considered.

Addressing Third-Party Complaints of Sexual Harassment

The company must take cognizance of the complaint. Try to gather evidence about who is conducting these comment sessions about the ladies. Talk to the ladies who go to the canteen and ask them whether they have noticed or heard of any such innuendoes or comments. Discreetly monitor the area to uncover some facts, based on which an inquiry can be conducted, as laid down for sexual harassment cases.

Currently, it is a third-party complaint, and the affected parties are silent or even unaware of the comments being made. However, there is no doubt that such activities are detrimental to the image of the company and the reputation of all individuals involved. Obtain evidence and take action.

Taking Timely Action Against Harassment

It is better to take timely action, or else the accused may become emboldened and escalate their teasing or passing of remarks. Take the lady into confidence and inquire if she is willing to testify, as you want to put a logical end to this menace. You need her full cooperation, including testifying before the committee set up by the company. If she can record the act before even coming to the committee, that will certainly help to nail the accused. However, eyewitness accounts along with the victim's statement should suffice to proceed in this matter. Do not delay; address the issue promptly.

Thought No. One

I just pity the management. A third-party visitor tells you that your house is not in order, and until then, your officers did not notice anything? This seems to be happening very frequently!

Thought No. Two

Why always assume that every such incident in that company is harassment? Perhaps light and comical non-veg jokes or something similar might be a source of enjoyment for that ladies' group. I mention this because no lady has complained.

My Advice

HR of that company should take immediate steps to stop such things. Whether it is a public or private place, no person has any right to break socially acceptable norms of dignity and good behavior, especially when in the company of women. Whether intentional, unintentional, or casual, open taunting or inappropriate comments are certainly subversive of discipline and need to be properly addressed. Perhaps the reported matter may not warrant disciplinary action, yet it is an alarming signal for HR, and it will be a challenging task for HR to prevent such occurrences in the future.

Clarifications on Handling Sexual Harassment Complaints

Information Given by You: "We received a complaint letter (Third-party complaint) stating that she noticed many times, some group of male employees giving sexually suggestive comments on female employees who go for lunch to the canteen."

At this juncture, I need clarifications on Your Queries:

1. Is it handled by ICC?
2. If Yes, According to POSH ACT what are the steps to be adapted for the Enquiry?

Clarifications

1. Yes.
2. The Written Report received should immediately be forwarded to the Presiding Officer of the Internal Committee of the Establishment which employs the persons against whom the report has been raised. This is so that the IC can begin their proceedings, including:

i) Conciliation proceedings at the behest of the aggrieved women complainants and/or
ii) Full-fledged inquiry proceedings in accordance with the principles of natural justice and the procedures prescribed for such internal inquiries.

In case a preliminary inquiry has not yet been held to prima facie ascertain the facts of the SH complaint, to draft charge-sheets or explanation-seeking letters, it should be held either by a member of the IC or a supervisor/an officer of the establishment. Upon submission of whose report, charge-sheets or explanation letters should be issued.

If the Internal Committee members have attended/participated in the mandatory:

a) Orientation Program and
b) Capacity & Skills Building Program,

as prescribed in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, they should by now be fully familiar with the inquiry procedures to be properly and faithfully followed, step-by-step.

The Internal Committee must complete/conclude the inquiry within 90 days and submit their inquiry report with definite and conclusive findings to the employer within the next 10 days for him/her to decide on further necessary action.

Any further clarification and/or request for assistance is welcome.

Regards, Harsh Sharan
Spl Educator, Transformatix
Bengaluru
19.3.2018

Addressing Third-Party Complaints in the Workplace

Yes, the term "third-party complaint" indicates a loss of control over malpractices occurring repeatedly within the company premises. Even waste material should not be allowed to leave the premises, so how can you tolerate or allow eve-teasing within the protected area of the company? Eve-teasing, which is disrespectful towards women workers, certainly falls under misbehavior and deserves disciplinary action. Confirm with CCTV camera reports.

Understanding Third-Party Involvement

Usually, third-party individuals might be servers, cooks, or cleaners of the canteen. Canteens and eating places are within the company premises and have certain rules that must be strictly followed. Appoint a discreet observer to report ongoing issues. Display the contents on the notice board immediately. Warn that any anonymous misbehavior with women will result in removal and legal action.

Immediate Action Steps

Proceed directly without any meeting with the ICC, etc. If you suspend anyone during a surprise visit, then conduct the ICC to decide the severity of the punishment. Be courageous in maintaining discipline. Your company premises are not a bus stand, public park, dhaba, or a college. Let all your employees understand the sanctity of the workplace.

I feel it is wrong on the part of the law that the woman has to prove that she was harassed. Which Indian woman will attract attention to herself by recording such an act? It doesn't have to be an innuendo; many times there is pushing and shoving.

The Need for a Safe Corporate Culture

Don't you think companies must set up their culture in such a way that a woman feels safe and secure? After all, if there is housekeeping staff to keep the place clean, why can't there be marshals, CCTV set up, and strict policies to deal with such miscreants? Corporate culture cannot do away with their accountability in providing a safe environment for women to work in. The law is not enough.

Geet Mala Jalota
Author of the book "Have The Women Left Venus? Decoding Gender at the Workplace"
Buy from: Amazon.in | Amazon.com | Flipkart | Shopclues | Amazon Kindle | Google Play

Please investigate the matter concerning the third party because no employees have made a complaint. This may be false or true. Register this complaint with your internal committee and promptly investigate the matter. Sometimes, employees may not directly report such incidents due to fear of job loss, so they confide in outsiders. Please visit their place, gain their trust, and approach the concerned employees to assure them that they need not fear job loss as it is beneficial for the company's future.

Critical Case of Third-Party Exploitation

This is a critical case as sometimes third parties exploit situations for their gain. CCTV or other sources may assist in validating third-party comments.

Conducting a 5 W+1H Analysis

Conduct a 5 W+1H analysis (why, what, who, when, whose, and how).

Our NGO conducts investigations in a similar manner through the [Globalized Campaign Welfare Society](http://www.gcws.in) and has achieved fruitful results.

Third-Party Harassment - As per the Act, if third-party harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge have to take necessary and reasonable steps, as per the law, to assist the affected person in terms of support and preventive action, including assisting an employee/third party who wishes to file a complaint with the local police.

V. Sounder Rajan
HR & Employment Law Attorney

I am a late arrival in this discussion. Nevertheless, many members have contributed to this discussion, and I would like to add the following:

Complaint Redressal Under the POSH Act

Complaint redressal under the POSH Act starts with a complaint by an aggrieved woman. Third-party complaints have no place under the POSH Act. Prabhat ji has described this subject of complaint under POSH well. The word "can" in the statement "any aggrieved woman can file a complaint..." is not appropriate.

The complaint by the aggrieved woman should be specific and not vague. According to the latest judgment of Delhi HC 472 reported in LLR May 2018, a vague complaint under the POSH Act is not tenable. It is the duty of the employer to provide a safe working environment.

Handling Third-Party Complaints

The company must take cognizance of the complaint by a third party, as already stated by Nathrao ji. After the due investigation of the complaint by a third party, the IC members/Company should persuade the group of women to lodge a specific complaint to the IC against specific persons within 3 months and proceed accordingly.

I hope the queriest has received answers to both of his/her questions from the discussions so far on this subject.