3 Ways to Handle a Sexual Harassment Complaint Against an Anonymous Harasser

With 3 Scenarios of the Harasser's Identity

Recently, I received a call from one of my clients, XYZ Ltd. A female employee had been subjected to sexually offensive calls on her official mobile from an unknown harasser. The HR Representative sought my advice as I serve as the PoSH External Member for their Internal Committee (IC or ICC). This incident highlights the importance of handling sexual harassment complaints against anonymous harassers with diligence and adherence to legal procedures.

Question 1: Should any sexual harassment complaint be called an “unfortunate incident?”

The HR SPOC used the term "unfortunate incident" when explaining the situation to me. She expressed concern that receiving a sexual harassment complaint might reflect poorly on her performance as an HR representative, making it seem like she didn't do her job well. The perception might be, "If she had done her job well, this wouldn't have happened." As the External Member, my role is to convey that using the term "unfortunate incident" and entertaining such thoughts can negatively impact the company culture, which is vital for creating a safe workplace for women.

This way of thinking might make the HR team feel inadequate, even when they might be performing their job perfectly well. This perspective can also influence the aggrieved woman, making her feel guilty for bringing up this "unfortunate incident." It's important for both (the HR team & and the aggrieved woman) not to harbour guilt. Additionally, the employer must recognize that receiving a sexual harassment complaint doesn't automatically imply fault on everyone's part and should not prompt feelings of shame. On the contrary, such a complaint could indicate that an untoward incident occurred, and the aggrieved woman had confidence in the employer, the HR department and the IC, which is why she felt secure enough to report the complaint. Filing a sexual harassment complaint by a victim actually bodes well for the organization.

Now that the complaint has been raised, all parties involved-the Employer, HR department, and IC-need to maintain neutrality. They should adhere to the processes outlined in the POSH Law, allowing the IC to function as intended. Treating the situation as a learning opportunity is crucial, ensuring that the right actions are taken for the benefit of both parties involved (Complainant & Respondent), and the organization at large.

Question 2: The HR Department often attempts to 'handle' Sexual Harassment Complaints without consulting the IC, especially the PoSH External Member. Is this a good practice or even legal?

Any sexual harassment complaint must be addressed by the IC alone. The PoSH Act, 2013, Section 4 mandates an Internal Committee, bestowing upon it the powers to inquire into complaints of sexual harassment, not the HR/Employer. The Internal Committee includes a PoSH External Member, an independent, neutral, third party, usually an expert in PoSH Law. This inclusion is with the objective of ensuring the Principles of Natural Justice are followed by the IC during the inquiry. The HR team must consult this External Member, the only non-employee in the IC, who is not likely to be swayed by internal pressures.

Not consulting a PoSH External Member is also ill-advised, as the HR team members may lack expertise in this domain. IC Members may not all be thoroughly trained. Some might be new and yet to be trained, which is a common scenario in my experience.

Note: If the company lacks an IC, the aggrieved woman may file the complaint with the Local Committee at the District Level.

Question 3: What if the Sexual Harassment Complaint has not been made to the IC?

If the sexual harassment complaint has not been made to the IC because the aggrieved woman complained directly to HR/Employer, Employer should inform the HR Department who should consult the IC along with the PoSH External Member. All the IC Members must stay updated on the latest PoSH-related Court Judgements to stay abreast with how the POSH Law is to be read & interpreted. Under no circumstance should the HR department ‘dispose of’ or independently investigate the sexual harassment complaint; it would be illegal, and detrimental to the organization.

Question 4: When the Sexual harassment Complaint against an anonymous harasser is made to the HR/Employer, and they consult the PoSH External Member, what is the best and correct course of action this Member can suggest?

PoSH Committee Members or the PoSH External Member should present options before the designated HR authority. These options are for the aggrieved woman to consider. The IC needs to explain these options to her, allowing her to weigh the pros and cons. Ultimately, it's her choice which option to proceed with.

3 Options to handle a sexual harassment complaint against an anonymous harasser:

1. File a written complaint with the IC.
2. File an FIR with the police.
3. Both of the above. (Preferred)

Question 5: Why should the aggrieved woman be advised to file an FIR?

Internal Committee Members lack tools to investigate the anonymous harasser's identity. They need this person's identity, and the police are the best resource. Once the IC has the harasser's identity, they can advise the aggrieved woman on the next steps.

Question 6: Why should the aggrieved woman also file a complaint with the IC?

IC cannot inquire into a sexual harassment complaint without a formal written complaint. Filing a complaint with the IC is advantageous as, if the harasser is their employee, the IC can ensure a speedy Redressal within 90 days per the PoSH Law. The Complainant may even opt for a Conciliation under Sec 10. The IC must explain to her what is Conciliation and what it entails so that the Complainant can make an informed choice.

A sexual harassment complaint filed with only the police can face inordinate delays. The IC and the police can proceed simultaneously, providing the best possible Redressal to the Complainant.

Question 7: What if the harasser is an employee or is not an employee of the company?

Once the police reveal the harasser's identity to the IC, they'll determine if he is an employee.

 3 Scenarios of the harasser’s identity:

1. Harasser is an employee of their organization: IC proceeds per PoSH Law.
2. Harasser is an employee of another organization: IC can reach out to the other organization's IC if the Complainant desires. IC advises the Complainant to file directly with the harasser's organization if she wishes.
3. Harasser is not employed: IC can provide moral support to the victim, which they must, as the harassment happened at the workplace. The police will investigate as per the Indian Penal Code (IPC) and other applicable laws, but may not provide moral support.

In Conclusion

When a Sexual Harassment Complaint against an anonymous harasser reaches the HR department or the Employer, they must consult the PoSH External Member. The HR department ‘handling a sexual harassment complaint or disposing it off’ without taking the complaint to the IC is illegal. The best course of action is for the IC to present options to the aggrieved woman. These options include filing a written complaint with the IC, filing an FIR with the police, or a combination of both, with the preferred choice being both actions.

Advising the aggrieved woman to file an FIR is essential because the IC lacks the tools to investigate the anonymous harasser's identity. The police are the best resource for obtaining this information. Once the harasser's identity is known, the IC can guide the woman on the next steps.

Filing a complaint with the IC is crucial because the IC cannot inquire into a sexual harassment complaint without a formal written complaint. This approach is advantageous if the harasser is an employee, ensuring a speedy resolution within 90 days, as mandated by the PoSH Law. Relying solely on the police for a sexual harassment complaint can result in lengthy processes, while concurrent inquiries by the IC and police offer the best possible resolution to the complainant.

In cases where the harasser is not an employee, the IC can provide moral support, recognizing the significance of the situation even if they cannot take direct action. The police will investigate according to the Indian Penal Code (IPC) and other applicable laws, although they may not offer the same level of moral support. It's crucial for all parties involved-the Employer, HR department, and IC-to stay neutral, follow the processes outlined in the POSH Law, treat the situation as a learning opportunity, and ensure the right actions are taken for the benefit of both parties (Complainant & Respondent).