The principles of agency are not applicable on The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, referred as SHWW Act hereafter. Which means that SHWW Act doesn’t impose any statutory, criminal as well as civil, liability on the employer for the acts of sexual harassment by employees. As a rule, an employer is not vicariously liable for employees creating hostile work environment. The standard of proof by courts in such cases is “knowledge standard” to assess employer liability. If the employer received actual or constructive knowledge about the harassment and did nothing to prevent it or if the employer fails to create a “safe system of work.”
So from an employer perspective, if he follows the Duties provided under the SHWW Act, he shall be relieved of any vicarious liability as per the current provisions. The duties envisaged by the SHWW Act for every employer shall be
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
(f ) make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee.
SHWW provides that failure to set up an ICC is a criminal offence as per the section 26(1) and would constitute a fine of INR 50,000/-. Subsequent or repeat offences invite twice the said punishment and can lead to cancellation of license or withdrawal of registration required for carrying on business as per section 26(2). The offence is non-cognizable and cannot be taken cognizance of by a court except on a complaint by an aggrieved women or person authorized by ICC/LCC.
The employer is also placed under an obligation to consider the recommendation of the ICC and take action on such recommendation within the statutory time-frame provided. Where the ICC makes a recommendation regarding an interim protective order to be passed in favor of the aggrieved woman, the employer is under obligation to comply and has to report back the compliance to ICC.
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