How does the COVID-19 lockdown impact Sexual Harassment inquiries?

Inquiries into allegations of sexual harassment at the workplace are fact-finding inquiries involving several sensitive and subjective elements. They often do not have electronic evidence as may be available in fraud investigations. They are highly witness-dependent and when it comes to assessing subjectivity, they may involve multiple witnesses.

With the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the status of POSH inquiries was elevated. It changed from an in-house domestic enquiry conducted by the human resource department to a legally sanctioned inquiry conducted by an Internal Committee.

The Committee is required to maintain a specified constitution, proceed with a quorum, ensure confidentiality, and adhere to rules of natural justice.

Under the law, this Internal Committee has been granted powers of a civil court in its proceedings and with such power, its inquiry-based actions and recommendations have also been placed within an appellate process.

The POSH inquiry process is challenging in itself. Timelines mandated by law also require that an inquiry, once initiated, be completed within 90 days.

The question then is what happens to these processes during the Coronavirus lockdown?

Here are some answers.

Can I adjourn my pending IC inquiry proceedings during the COVID-19 lockdown?

The short answer to this is yes, you can adjourn your proceedings.

Some safeguards may however be ensured:

• Both parties will need to be suitably advised of this.

• It is a good practice to put in place interim measures of protection such as changing supervisory responsibilities etc. before such adjournment to avoid continuing hostility or retaliation.

• If harassment has been alleged over mobile, email/official communication such as Skype or over WhatsApp, then undertakings may need to be taken from the employees to cease and desist from any unnecessary or unofficial communication on these mediums.

What if I adjourn proceedings and also can’t complete the inquiry in the 90-day time period given to complete POSH inquiries?

The 90-day time period under the POSH Act has been described as a mandatory requirement. Section 11(4) of the enactment uses the words “shall”.

Unlike the Protection of Women from Domestic Violence Act, 2005, which provides a 60-day time period for disposal of applications, but with the introductory words “the Magistrate shall endeavour”, no such saving words have been used in the POSH enactment.

Therefore, no relaxation is envisaged by the enactment itself.

It may, however, be reasonable to assume that the 90-day requirement is a reference to 90 working days. It may also not be usually expected that a committee comprising employees would be required to work on their paid leave days and statutory holidays.

This, however, may not be relevant where employees who are committee members, have not been placed on leave during the COVID-19 lockdown.

On account of the above, and if the lockdown were to be extended, best efforts ought to be made to continue the proceedings so that inquiries are concluded in 90 working days.

If this is not possible, then proceedings can be adjourned with the safeguards mentioned in the answer to the first question, and this can be documented in the final inquiry report.

Also, the inquiry report could, as a good practice, state reasons in writing for the delay as force majeure or reasons beyond the control of the Internal Committee.

This delay may also need to be reported in annual reports submitted to relevant authorities under the subject law.

Can action be initiated against an employer for not completing the inquiry in 90 days?

The number of cases pending for more than 90 days are to be reported in the annual return submitted under Section 21(1) of the Act, read with Rule 14 of the Rules made under the Act.

Under Section 19, it is the responsibility of the employer to monitor the timely submission of reports by the Internal Committee.

The Act further provides under Section 26 that any contravention by an employer of the provisions of the Act shall be punishable with a fine which may extend to fifty thousand rupees.

It is, however, highly unlikely that a monitoring authority would impose such a fine when no other extenuating circumstances exist other than the COVID-19 lockdown for such delay.

Can either the aggrieved woman or the respondent raise a grievance against the IC for not completing the inquiry within 90 days?

Yes, either the complainant or the respondent may bring up a grievance with the employer on time-limits not being adhered to, as the employer is responsible under the Act for such monitoring.

This, however, would not usually have any bearing on the inquiry proceedings and by itself may not be taken as bias against either party or a vitiation of their rights.

However, as a good practice, due care ought to be taken for preservation of evidence under the control of the employer that may have been submitted by either party such as a request for CCTV recordings or chat or mail backups.

It is reasonable to assume that if the same were to not be preserved during the period of delay, this may substantively impact the parties and give them a cause of appeal.

Can I continue my IC proceedings with IC members joining remotely for the inquiries?

Yes. There is no bar in law for IC members convening for proceedings remotely through video conferencing.

On account of the Coronavirus lockdown, even the Ministry of Corporate Affairs (MCA) has allowed board meetings to be held through video conferencing or other audio-visual means. Parallels can therefore be drawn.

As a matter of abundant caution however, changes in the service rules/disciplinary processes of an organization to recognise such proceedings can be made.

What safeguards should I have in place to conduct remote proceedings?

It is notable that the MCA also states that audio-visual facilities should be provided for meetings. Hence, all members connecting only telephonically when meeting the aggrieved woman, the respondent, or witnesses may not suffice.

Quorum and proof of quorum of the Internal Committee ought to be maintained for all inquiry meetings.

Depositions ought to clearly state that they are being taken on oath and best efforts ought to be made that the depositions are circulated within the committee members vide email and also shared with the deposing party as soon as possible and preferably on the same day for their confirmation within the same day.

How do I conduct cross-examinations remotely?

Cross-examinations may be conducted through written interrogatories, i.e., lists of questions submitted in writing by the party wishing to cross-examine.

List of interrogatories is a practice and method recognised also by the Supreme Court guidelines in its own inquiries for sexual harassment. However, it is best that service rules and policies on disciplinary proceedings allow for this method.

I am unable to get signatures of the Internal Committee members or the deposing party. What should I do?

This is a time to reduce all dependency on wet signatures. However, most individuals don’t have digital signatures.

As alternatives, confirmations may be taken on email, or software such as Adobe may be used. It would be best that once the present restrictions are over, documents are signed again. This is particularly for reports of findings where abundant caution ought to be exercised.

Finally, as long as rules of natural justice are followed, the Internal Committee is lawfully constituted, and proceeds with a quorum, reasonableness and common sense have an answer for almost every dilemma in these challenging times.

The author is an Advocate and Founder Partner of Cohere Consultants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.