Sexual Harassment Case Study: How Should HR Handle This Delicate Situation?

Dear members, A case study on sexual harassment has been uploaded to one of the WA groups. I have pasted it below:

Brief of the Case

Ms. Beena Kumari joined as a Management Trainee - Marketing in the company in August 2017 in Pune after completing her PG in Marketing from a reputable Management Institute. She is passionate about marketing.

On April 10, 2018, one of the distributors asked her to visit his office to understand the product range. She visited the distributor's place and explained the company's product range. The distributor then asked her to return the next day to place a large order for all products.

In pursuit of securing the big order and achieving targets, Beena Kumari visited the distributor's office the next day. Upon her arrival, she found three other individuals present in the office. The distributor informed her that they were placing orders for all products worth crores of rupees. Overjoyed by this news, Beena thanked the distributor. Subsequently, the distributor offered her a cold drink. After tasting it, she realized something was wrong and insisted on leaving. However, she was prevented from leaving the office, and they attempted to sexually abuse her...

Fortunately, she managed to escape the situation. The following day, she submitted her resignation to her supervisor, explaining the incident. While management is willing to assist her in filing a complaint with the police, she is hesitant due to social barriers.

Given the above, as the HR Head, I am seeking advice on the following queries:

1. How would you deal with the situation?
2. Would you refer this case to the Internal Committee for further investigation?
3. What preventive measures would you take to avoid such incidents?
4. Should we accept Beena Kumari's resignation?
5. Any other insights.

I kindly request all members to share their views.

Regards,

Raosaheb Kangane HR Federation of India Managing Committee Team

Observations of Special Educators of Kritarth Consulting Team on the Case Study circulated by Raosaheb Kangane, HR Federation of India

Every employer of every workplace in India is legally duty-bound to:

i) Provide protection to women from sexual harassment at the workplace.

ii) Prevent, prohibit, and redress complaints of sexual harassment and matters connected therewith and incidental thereto.

There is no exemption or immunity to any employer whatsoever. In short, every employer, as defined in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, is legally liable to create a safe and secure workplace where no woman shall be subjected to sexual harassment.

In the case study under reference, the employer of the establishment/institution that employed the aggrieved woman, named in the case, failed in his/her duty to provide protection to her and therefore is liable to be levied penalties stipulated in Section-26 of the said Act of 2013. The employer is also liable for abetting the violation of the aggrieved woman's fundamental rights, namely the right to life with dignity as guaranteed in our Constitution and the right to practice/pursue any profession/avocation, etc.

The employer, in faithful and proper fulfillment of his/her duty under Section-19 (g) of the SHWW Act of 2013, must provide all reasonable assistance to the aggrieved woman who is declining to raise/submit a written complaint for any reason whatsoever, best known to her, to lodge/file an FIR under IPC sections.

Since the employer under reference failed in his/her duty to provide protection to the aggrieved woman, he/she need not wait for the mere technical formality of receiving a formal written complaint or, in the absence thereof, await its submission. Instead, they must proceed with asking one of its executives or one of the internal committee members in his/her establishment to conduct a prima facie fact-finding preliminary inquiry to ascertain the facts/details. Based on this, they must immediately refer the SH complaint to the chairperson of the local committee in whose jurisdiction the alleged harasser's workplace is located. The local committee is empowered to deal with SH complaints against the head of such establishment's workplace.

Her employer should not act upon the resignation letter submitted until her SH complaint is duly and diligently disposed of. The employer/management must get her medically examined thoroughly for assessment of injuries, if any, inflicted upon the aggrieved woman. Disciplinary action must immediately be initiated against the immediate superiors of the aggrieved woman who, individually and collectively, failed to provide protection knowing fully well that she was deployed by them to visit the workplace of the distributors or at any other workplace to interact with him/them in furtherance of the prospective business deal of the supplier establishment.

Also, to make the superiors and all other managers, supervisors, and employees aware of their duties, the employer must quickly organize awareness programs. And look and behold—the IC members of the establishment where the aggrieved woman worked appear to be inactive, uninvolved???

Ignorance of the law is no bliss, and let every employer realize that, especially those who are registered under the Companies Act 1956 and are required to file with the ROC their company's annual return including non-financial disclosure under Section-134.

We, the Special Educators Team at Kritarth, call upon all and any person who supervises, manages, and controls the workplace and all others to join hands and act together in adopting effective mechanisms to co-create a safe and secure workplace where no woman shall be subjected to sexual harassment, anymore, forever.

Regards, Special Educators Team Kritarth, Bengaluru Service Center, 17th April 2018

There is not an iota of doubt that the employer has failed in his duty imposed upon him in relation to the POSH Act, 2013.

But I am not in complete agreement with the advice rendered by my friend Kritarth. There may be various situations that may emerge from the following, and it could be an endless debate, however:

1. Without a written complaint from the "aggrieved woman," a suo moto inquiry by the IC may only lead it to suggest further precautionary measures to the employer. At the most, the contract with the distributor may be clinched (although that may also have business repercussions as a suo moto action from one party without giving the other party a chance to rebut the charge levied against him - civil or criminal - will have no meaning in the eye of the law as it is devoid of any evidence). Thus, in accordance with the rules laid down under the POSH Act, a written complaint is a must from the aggrieved woman for the IC to take the matter in hand, which is missing in the present case.

2. The resignation of the "aggrieved woman" should be accepted; otherwise, the employee may file a complaint to the Magistrate under Section 26 of the POSH Act attributing the charge of abatement on the part of the employer. However, before accepting her resignation, she should be asked to state the reason for tendering her resignation. If she tenders resignation on account of sexual harassment, the case must be referred to the IC. If it is tendered for any other or personal reason, it should be accepted, and her accounts settled. It is advisable that she should be asked the reason for her resignation in writing so that the employer has an opportunity to say that despite asking, she did not disclose any sexual harassment or any lapse on the part of the employer.

3. I agree with the other inputs given by Kritarth.