A complaint of sexual harassment by an employee in a company resulted in the company being held liable when the court found that HR had failed to take sufficient action concerning directing the employee’s report of inappropriate behaviour to the Internal Committee.
The alleged sexual harassment included physically unwelcome behaviour physically unwelcome behaviour such as unsolicited touching and unnecessary proximity and persistent requests to have a drink outside work hours despite an ongoing refusal by the complainant, asking for cuddles, telephoning her at home, and making repeated unsolicited sexual remarks. The respondent also engaged in inappropriate personal contact, asking for cuddles, telephoning her at home, and making repeated unsolicited sexual remarks.
The complainant reported the sexual harassment to her HR Head. The HR did not take any action and asked the complainant through conciliation, to resolve the matter with the alleged respondent. This was a grave lapse in procedure, as conciliation can only be initiated after a formal complaint has been filed with the Internal Committee and never as an alternative to filing a complaint.
The complainant filed the case in court. The court found that, even in these circumstances, the employer was vicariously liable for the acts of its employees. It found that the employer has an overriding responsibility to provide a workplace free from harassment and that HR had the responsibility to guide the complainant to file a PoSH complaint. The judgment underscored that a company’s accountability extends beyond just establishing an Internal Committee, it also involves ensuring that every employee, especially HR personnel, understands their legal duties under the PoSH Act.
The role of HR
The human resources department, in many instances, serves as the first point of contact for a victim of sexual harassment. The first interaction that a complainant receives can either help them feel empowered to file a complaint or make them feel intimidated. This initial response can shape the complainant’s trust in the organization and determine whether the case is addressed internally or escalated to external authorities.
It’s pertinent to note that discouraging or delegating the complainant not to file a PoSH complaint is a legal wrong and can lead to serious repercussions, including fines, reputational damage, and even the revocation of the company’s operating license if held liable. The HR team must remember that empathy and procedural accuracy go hand-in-hand — one without the other can jeopardize both justice for the complainant and compliance for the organization.
The following are the things to keep in mind when a case has been reported to you as an HR:
- Create a safe space:
When the complainant has reached out to you, make separate time available to listen to them in privacy. Ensure that the meeting space is confidential and free from interruptions. A supportive tone and neutral body language can help the complainant feel heard and safe. - Listen without judgment:
Be mindful of your behaviour and pay close attention to what they are mentioning. Do not question their experience or repeatedly ask for graphic details of the incident. Your goal is not to investigate in this initial stage but to document the facts as narrated by the complainant. - Document carefully:
It’s very important to note down every detail that was shared by the complainant. This documentation should be dated, factual, and free of interpretation. These notes often form the preliminary record for the Internal Committee’s review. - Inform them of their rights:
Make them aware of the PoSH procedure, the complaints process, and their legal rights under the Act. Explain the role of the Internal Committee, the timeline for inquiry, and the protections available to them, including protection from retaliation. - Encourage formal reporting:
Urge them to file a report with the IC and offer assistance if needed in doing so. HR’s role is to facilitate—not influence—the decision, ensuring the complainant feels supported in taking formal action. - Maintain strict confidentiality:
Make sure that you have kept all information shared with you highly confidential and not shared the same with anyone except those who need to know. Breaching confidentiality can cause secondary trauma to the complainant and expose the organization to legal risks. - Offer continued support:
If required, you can provide further assistance to the complainant to complete pending tasks and catch up with work. Checking in on their wellbeing and ensuring there are no forms of subtle retaliation at work are also part of HR’s extended responsibilities. - In essence, HR professionals are not just administrative facilitators but custodians of workplace safety. Their handling of a PoSH case reflects the organization’s values and commitment to gender equality.