How Should HR Handle a Warning for Inappropriate Behavior in the Workplace?

To: [Employee's Name]

Subject: Official Warning Regarding Inappropriate Behavior

Dear [Employee's Name],
I am writing to address a serious issue that has come to our attention. It has been reported that you were observed watching a female locker room while a female employee was changing her clothes. Such behavior is completely unacceptable in our workplace and goes against our company's policies on respect, privacy, and professionalism.

This type of misconduct not only violates the privacy and rights of your colleagues but also creates a hostile and uncomfortable work environment. As an employee of our organization, you are expected to conduct yourself in a manner that upholds the values and standards we adhere to.

Please be advised that this incident has been documented, and this letter serves as an official warning. Any further violation of company policies or inappropriate behavior will result in disciplinary action, up to and including termination of employment.

I urge you to reflect on your actions and understand the gravity of the situation. It is imperative that you demonstrate immediate improvement in your behavior and fully comply with our company's code of conduct moving forward.

If you have any questions or concerns regarding this matter, please do not hesitate to schedule a meeting with me to discuss it further.

Sincerely,

[Your Name]
[Your Title]
[Company Name]

Dear Harish,

A few questions and comments on your post are as below:

Privacy Concerns in the Changing Room

How can anyone peep inside the changing room for women? Why is the room not secured? The privacy of the staff must be maintained. Far from doing it deliberately, nobody should be able to do it accidentally as well.

Evidence and Investigation

Do you have solid proof of someone peeping in the changing room? Is there any material evidence? What happened when someone discovered it? Have you obtained a statement from the employee who committed this misconduct?

You have written, "employee who watched a female locker room during a girl changing her clothes." Was the employee a man or a woman?

Consequences of Privacy Breach

Whether man or woman, whoever peeped in the changing room has breached privacy. Why do you wish to let off an employee with just a warning letter? Suppose the woman employee comes to know that she was watched secretly while changing her clothes, how ashamed will she be? Have you thought of this?

Watching someone while changing clothes is nothing but perversity. An organization should not have any place for employees who wish to satisfy their prurience. Therefore, if you have sufficient proof of the misconduct, then conduct a domestic inquiry and sack the employee. It will send a message to all the women employees that your organization does not compromise their dignity. Secondly, it will be a deterrence to other employees with a similar mindset.

Thanks,

Dinesh Divekar

Dear CiteHR Member Shri Harish,

Although our senior member Shri Dinesh Divekar has provided lucid details about the probabilities of the situation and has rightly suggested removing the wrongdoer employee after conducting a domestic inquiry, I would like to add that if there is sufficient evidence with the employer (e.g., CCTV footage or a complaint from the concerned girl with corroboratory evidence), then the employee can be terminated without conducting a domestic inquiry. Such an action by an employee is an invasion of the privacy of a woman, which amounts to outraging modesty, and dismissal without an inquiry would be justified based on satisfactory evidence.

With regards,
Chandra Mani Lal Srivastava

If such an incident happened, you should report the matter to the POSH committee and call for disciplinary hearings into the matter. Let the domestic enquiry officer decide the quantum of punishment.

If you let the matter go with just a warning, and in case any of the victims decide to take the matter to the DCC or the police, the management will also be in serious trouble.

Dear All,

With greetings of the day to senior Mentors, Moderators, and professional colleagues, I may, with due respect, be permitted to delineate that the narrative posted by the querist Shri Harish does not fall within the definition of sexual harassment as enshrined in Section 2(n) of the Sexual Harassment of Women at Workplace (PPR) Act 2013. As such, an Internal Committee (POSH Committee) has no role in it. Secondly, the Act does not empower an IC (Internal Committee) to decide the quantum of punishment. It is only the disciplinary authority/employer who is competent to decide the quantum of penalty and award punishment accordingly.

It may be relevant to mention that the narrative of the incident falls into the category of voyeurism under Section 354C of IPC 1860, which is a punishable offense. A police report can be filed either by the employer or by the victim herself.

Furthermore, I may be given the liberty of stating that voyeurism is a voyeuristic psychological disorder that needs particular attention from society. Social media also needs to be restricted on this aspect.

With due regards,
Chandramani Lal Srivastava
Mater Consultant
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]
New Delhi/18.07.2022/9:06 am

Dear Mr. Harish, How did you come to the conclusion that the alleged misconduct warrants the issuance of a warning letter? Are you the disciplinary authority?

Mr. Srivastava,

I checked the definition of sexual harassment in the act, which is provided below.

Definition of Sexual Harassment

“Sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication), namely:
(i) Physical contact and advances; or
(ii) A demand or request for sexual favors; or
(iii) Making sexually colored remarks; or
(iv) Showing pornography; or
(v) Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

The last item, unwelcome physical, verbal, or non-verbal conduct, I think will cover the case specified in the original post. Therefore, it can definitely be taken up by the ICC. Alternatively, the management can file an FIR on their own initiative. If they don't take any action or just give a weak response like a warning letter, they will be in trouble later.

The other reason for this to be taken up by the ICC is that most female employees are uncomfortable with police involvement due to their desire for privacy and social norms.

Role of ICC in Punishment

About the punishment, I have seen ICC recommending the punishment and the quantum of the same. The management asks for it so that they are not accused of being partial or of favoritism. It helps them defend their action in court.

Please explain why you think the ICC cannot recommend the punishment.

Dear Mr. Saswata Banerjee,

With due regards to your acumen, I appreciate your efforts to glance over the definition given in Section 2(n) of the SHWW (PPR) Act 2013. However, I shall respectfully clarify that the provisions of the Act are not a matter of opinion but of legal construction and jurisdiction conferred by the Act on the IC and the Employer. I shall dwell upon your points serially.

Your opinion is not sustainable because the narrated incident does not fall into the category of Section 2(n)(v), viz "any other unwelcome physical, verbal or non-verbal conduct of a sexual nature." This is because, in the reported case, there was no physical or verbal conduct. The 'non-verbal' conduct should be of a sexual nature, i.e., it can be by way of a gesture or showing of obscene material before the female person. In this case, there was neither any gesture nor any obscene material shown to the female before her eyes. Hence, the narrated incident is definitely not covered under Section 2(n)(v), and I would reiterate that an IC has no role in it. As already stated, the matter comes under the scope of Section 354C of the IPC 1860, under which a report can be made either by the Employer or by the female victim.

With regard to the quantum of punishment, the Act does not empower the IC to recommend the quantum of punishment. Your opinion or example of past cases is against the statutory provision, and it would be totally illegal for an IC to recommend the quantum of punishment. If it does so, it is assailable in a court of law.

If you wish to have any other clarification, you are cordially invited to contact me at my mobile number or email. I shall be happy to provide the correct legal position in this regard.

With kind regards,
Chandramani Lal Srivastava
Master Consultant - Subject Expert on POSH
Mobile - [Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]
New Delhi/20.07.2022/10:07 pm

With due respect to all who opined, I want to bring to your notice that various High Courts have delivered judgments that even staring at a woman is considered sexual harassment. Peeping is even more severe.

Employer Responsibility and Challenges

Dineshji, it is acceptable to suggest that employers should take all necessary measures to prevent such behavior. However, it may not always be possible to completely eliminate it as perpetrators often find new ways. Simply because a girl is struggling in a crowd to move out, no one has the right to touch her unless she explicitly asks for help. Similarly, just because there is an opportunity to peep does not grant anyone the right to do so. It is not appropriate behavior, and the individual should face consequences. The severity of the punishment, whether a warning or more, depends on various factors.

Fundamental Principle in Addressing Harassment

One fundamental principle to remember is: "It is not the intention of the perpetrator that matters, but rather how the woman feels in that situation." These types of scenarios should be handled with sensitivity and skill.

Vibhakar Ramtirthkar.