“We received a complaint from Shaila. She accepted the friend request from her colleague Gaurav on Facebook. They are not really friends but she did not want to be rude. He has been sending her many messages on Whatsapp, liking and commenting on her pictures. Lately he sent her a personal message telling her that he thinks she looks very pretty and he cannot stop thinking about her. They are both in the same team but is this sexual harassment in the workplace?”
Working from home (WFH) has become the new accepted ‘normal’. This brings companies in unchartered territory, leaving leadership to ask the question - Does PoSH (Prevention of Sexual Harassment) extend to this this newly designated workplace - Home?
According to Section 2 (o)(v) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, the definition of a workplace is broadened from the traditional ‘registered office’ to - ‘any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.’ Many Internal Committees (IC) who are appointed to take up such cases, have been interpreting this clause to include virtual platforms and WFH situations.
Section 2 (n) of the Act, defines sexual harassment as ‘any unwelcome, sexually determined physical, verbal, or non-verbal conduct’. In Jahid Ali vs.Union of India & Ors. – Delhi High Court 2017 , the Hon’ble High Courts has considered sexually coloured messages over mobile phone, as sexual harassment of a woman under the 2013 Act.
Additionally, Section 2 (o) (vi) of the Act specifies - ‘a dwelling place or a house’ this is usually in reference to the domestic help who are employed in a dwelling place or a house. With the mandatory WFH, some IC’s have interpreted all electronic mediums used for discharging duties as an extended workplace. For example, laptop, mobile phone, all video/ audio calls.
In our experience, here are some best practices for the leaders to proactively build a safe workplace.
Share guidelines on content shared across virtual platforms
Communicate the expectation of respectful behaviour that should be maintained on all virtual channels. It is important to share your company’s stance on content that is sexually coloured, demeaning to any gender, religion, region or content that is likely to offend or make a colleague uncomfortable.
Share tips for inclusive communication among colleagues on virtual platforms
As an inclusive step, video communication can be made optional. In case of a necessity, a prior notice can be shared with participants. This step is useful keeping in mind the diverse home environments that the employees are working from.
Some employees may live in joint families, some may be primary caregivers, some may be constrained for space and may not be comfortable with their colleagues viewing this personal environment.
Regular communication from the IC
The IC should ensure that aggrieved employees do not face logistical or emotional impediments in approaching them. The creation of a safe space for employees to voice their concerns can be achieved through surveys, regular check-ins and virtual town halls. These efforts build confidence and increase awareness about the constitution of the IC, the support and care that will be extended to employees incase of an incident.
Update the sexual harassment policy
It is useful to review the company sexual harassment policy to address the aspect of virtual harassment. If the original policy requires that the complaint be physically handed over by the Complainant to the IC or that the IC meetings should be in-person, then those sections can be updated keeping in mind the imposed WFH restrictions.
An active redressal mechanism
Leadership can offer an active redressal mechanism even while employees are working remotely. The IC can host virtual inquiries, offer interim protection and fairly conclude cases without delay. Regular communication with the Complainant and Respondent about the enquiry timeline is an inclusive practice to ensure that both parties feel safe and heard.
Going beyond the mandates
Amid the imposed lockdown there has been an increase in cases of domestic violence. If there is a silver lining to this, we have come across situations where employees have reached out to the IC for assistance, even though these complaints are not under the ICs jurisdiction. In our experience at Serein, many IC have been offering their colleagues resources as well as legal advice to seek assistance. Our team at Serein has compiled a city-wise resource guide that can be shared with employees who are in these difficult situations.
The pandemic has redefined the paradigms of what is known as a workplace. It has offered leaders an opportunity to relook at how they proactively address employee wellbeing and safety to stand out as employers of choice.