How do you ensure yours is a watertight case after you've decided to move court or take your sexual harassment complaint to a formal platform? Here's the guidebook to ensure you have all corners covered
The days of reckoning are here - as the #MeToo movement continues to gain momentum, in India and across the world, multiple men and women have begun coming forth with their own testimonies of inappropriate and often downright abusive behaviour at the workplace. But what does it take for these allegations to work their way from social media into formal or legal channels? Here's everything you need to know about building a watertight case.
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What can I report?
Advocate Radhika Gautam explains, "Under the Prevention of Sexual Harassment at Workplace Act of 2013, any of the following can constitute sexual harassment:
- Physical contact and advances
- A demand or request for sexual favours
- Making sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
Where do I go?
"The Act mandates that every organisation with 10 or more employees have an internal complaints committee to which you can report any instance of sexual harassment," says legal consultant Devna Arora. However, this act comes with a time frame of three months (extend-able by another three months) to file the complaint.
Alternatively, Gautam says that you can file a criminal complaint under the provisions of the Indian Penal Code such as Section 509 that makes words, gestures and/or acts intended to outrage the modesty of women punishable. "In such cases, I would suggest that a copy of the complaint, and ultimately the judgment, be given to the organisation's HR department. In most cases, the rules laid down by the internal department ensure that employees convicted in criminal offenses are terminated from the organisation - the conviction could therefore ensure that the perpetrator is removed from the workplace," Gautam explains.
In this case, the time limit is linked to the quantum of punishment prescribed - for instance, the period of limitation is one year from the date of the offence, if the offence is punishable with imprisonment for not more than one year. There is no period of limitation for offences that are prescribed more than three years' imprisonment, explains advocate Debanshu Khettry. "The court may extend the timeframe indefinitely if the delay is properly explained or if the court finds that it is necessary to do so in the interest of justice. Further, the time limitations for reporting the offence may also become redundant if the court finds that the offence is ongoing," he adds.
Devika Singh and Devna Arora
What will I need?
"Call logs, phone records, text messages, WhatsApp records and emails can all serve as evidence, as can medical records. In addition to screenshots, it helps if you can retain the original on the mobile device or laptop," says advocate Devika Singh.
Additionally, Gautam recommends inquiring if others at the workplace have been subject to similar harassment by the same person - their testimonies could also serve as evidence.
To further strengthen your case, you could include names of people who may have witnessed the incident(s), she says. In case of internal complaints, hearsay evidence is also deemed reliable based on the integrity of the evidence. "It is important for an aggrieved woman (or man) to speak up against the harassment at the earliest. Simply writing an email to the management or involving a manager to witness the behaviour of the harasser can prove useful. You can maintain a diary of these incidents with the date and time," she advises.
What next?
"Usually, after filing a complaint with an internal council, company policies may mandate that you maintain confidentiality. Sharing any documentation or details of the proceedings on social media may be taken as a breach and may cause the complainant to lose the company's support. Proceedings in court and with the police are public proceedings by their very nature, unless there is a court order requiring confidentiality. In such cases, there is no bar on complainants speaking up on social media. This, however, should be done with the full awareness that the respondent too has the right to file a complaint/case of defamation," Singh says.
What can I expect?
It is important that complainants bear in mind that, under the act, the most severe action that can be recommended by the internal committee is termination of employment, compensation and/or reporting the matter to the police.
Any expectation of imprisonment is incorrect. Also, a zero-tolerance approach under the law does not mean that every act of sexual harassment will result in termination, as the committee will be careful to ensure that their recommendations are proportionate to the allegations that have been levied, says Singh.
After the verdict is received, make sure you receive a copy of the inquiry findings - this should also include the material that the committee has relied on in coming to its verdict. If the verdict is not favourable to you, you can consider filing an appeal either in accordance with your organisation's service rules or with the appellate authority, she says.
Keep in mind:
- While preparing a complaint, be thorough, but stick to the facts. Remember that any false allegations may also be penalised based on the provisions of the act.
- If you feel that any member on the board of the internal committee may be biased, you can challenge the constitution of the committee.
- If your case isn't successful in court, know that you may be at the receiving end of a social media backlash or a defamation suit. Be aware of this possibility and take a balanced call.
- If you did share a consensual relationship with the accused that later turned abusive in a manner that amounts to sexual harassment at the workplace, do not hesitate to disclose the same to the committee. Make sure that your disclosure is complete and truthful.
- In case of limited financial resources, you can explore pro-bono services that are offered by certain legal consultancies and lawyers. Free legal aid is also provided at the cost of the State to those who cannot afford legal fees.
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