Taking action against sexual harassment and other employee law matters

The Supreme Court defined sexual harassment in the work place to include the following:

1) Sexually determined behavior (whether directly or by implications)
2) Physical contact and advances
3) A demand or request for sexual favors
4) Sexually colored remarks
5) Showing pornography
6) Any other unwelcome physical, verbal or non verbal conduct of a sexual nature.

Employers are now bound to take action against those employees guilty of sexual harassment. As per the SC guidelines, it is the duty of the employer to prevent or deter acts of sexual harassment as well as put in place a procedure for resolution, settlement or prosecution of acts of sexual harassment. The employer has to give publicity to the norms within the workplace and necessary amendments have to be made in the employee code of conduct.

All organizations have to put in place a complaint mechanism in the form of a complaint committee, a special counselor or support services. The committee should be headed by a woman and half the members of the committee should be women. The participation of representatives from external agencies like the government or NGOs is also suggested so that pressures on the committee can be prevented. Confidentiality should be assured and maintained, so that the complainant (or the victims, who can be drawing salary or an honorary worker) has the confidence to raise the issue.

The judgment also specifies that employees should be allowed to raise issues of sexual harassment at workers’ meetings. Employer — employee meetings should also discuss issues related to the prevention of sexual harassment.

In many cases, victims face harassment from parties who are outside the organization. To take care of such situations, where a third party is involved, the employer has to take necessary steps to support the victim and assist in punishing the offender. The judgment is considered as a landmark one that protects the rights off women workers in India. The Government of India is considering introducing a comprehensive legislation related to the prevention of sexual harassment at the workplace.

Applicability of labor laws to the IT/ITES sector

One of the questions asked in whether the IT and ITES (BPO) sector is outside the coverage of labor legislations or act that regulates the conditions of work for IT / ITES employees.

From the nature of work performed, it can be seen that IT / ITES companies are covered by The shops and Commercial Establishments Act of 1961. The act deals with working hours, overtime rate, spread over, employment of women and young persons at night, etc. Many states have come with state specific acts that are more suited to the requirements of the state.

ITES / BPO employees fall easily within the definition of workmen under the Industrial Disputes Act, unless they are in the managerial cadre. In the interest of facilitating the sector, many state governments have declared IT/ITES companies as public utility services where restrictions on strikes and lockouts exist (Section 22 of ID at 1947). Similarly exemptions from applications of labor law are a common feature of special economic zones (SEZs).

The given relaxations do not mean that the IT / ITES industry is outside the purview of all labor legislations that provide a protective cover to the employees. Many governments have also allowed self certification instead of inspections, and the firms are expected to abide by the law of the land. At the same time, there are views about the company directors being held personally liable for non-compliances, even those of very trivial nature.

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