How can the anti–harassment law be made more pragmatic

In its judgment of July 6, 2021, the Supreme Court of Pakistan held that the Protection against Harassment of Women at the Workplace Act, 2010, was cosmetic legislation that was blinkered in its application.

According to the judgment, any other demeaning attitude, behaviour or conduct which might amount to harassment in the generic sense of the word, as it was ordinarily understood, howsoever grave and devastating it might be on the victim, was not actionable within the contemplation of actionable definition of harassment under the act. Giving such restrictive meaning to ‘actionable’ harassment by the legislature in its wisdom impinges the very object and purpose for which the act was promulgated.

In pursuance of the above observations, the government, on January 21, 2022, enacted the Protection against Harassment of Women at Workplace (Amendment) Act, 2022, with the following salient features:

The definition of ‘complainant’ now includes a former employee who has been removed or dismissed or has resigned from service, and a parent or guardian if the complainant is a minor.

Apart from what is commonly understood, the following have been included in the definition of ‘employee’ – though they may not be the employee under any other law – student, performer, sportsman, trainee and domestic servant; ‘employer’ now includes contractor, online business owner or manager, and in case of a house, anyone who employs or benefits from a domestic worker.

The following major changes have been made in the definition of ‘harassment’: stalking and cyberstalking have been included in the definition of harassment; apart from verbal and written communication, visual communication is also included in harassment; discrimination based on gender – may not be sexual in nature or with any overt or covert sexual intention – in employment, appraisal, promotion, posting etc., is now included in the definition of harassment.

Educational institutions, concert places, performing facilities, highways, sporting facilities and houses etc., have been included in the definition of ‘workplace’. The inquiry committee shall submit its findings and recommendations to the competent authority within 30 days of the initiation of inquiry. A single incident that makes a person uncomfortable or creates a sense of fear or panic at the workplace is also harassment.

Despite the above-mentioned considerable amendments, employers still face difficulty persuading the victim to lodge a formal written complaint against the accused. The procedure for holding domestic inquiry prescribed under the act is like that for other misconducts.

There is a long list of misconducts prescribed under the law, some of the critical among them are as follows; willful insubordination or disobedience to a lawful and reasonable order of the superior; theft, fraud, or dishonesty in connection with the employer’s business or property; acts subversive of discipline; absence from work without leave; and habitual negligence or neglect of work.

On receipt of the complaint, the accused is issued a charge sheet. Later, a formal inquiry is held after the accused submits an explanation. In the inquiry, there is a ‘representative of management’ and the accused workman is given the option to nominate a co-worker for providing him assistance during the inquiry. First, the representative of management should produce management witnesses and documentary evidence, if any, in support of the charge. Their evidence is recorded by the inquiry officer, and the respective witnesses are subject to cross-examination by the accused.

The inquiry officer then provides an opportunity to the accused to get his/her statement recorded and produce defence witnesses. They are liable to be cross-examined on their statements by the representative of management. There is no issue in adopting this cross-examination procedure during enquiries for other misconducts. However, it is unrealistic to expect a female victim of sexual harassment to be cross-examined by the accused and vice versa in the presence of the male members of inquiry committee members.

The inquiry committee constituted under the 2010 act, to investigate harassment complaints, consists of three members. One of the members should be a woman, one should be a senior management representative, and one should be a senior employee. If there is a collective bargaining agent (CBA) union in the organisation, one of the three members is to be nominated by it in place of the senior employee.

To make the act more pragmatic, the confrontation between the victim and the accused, even in the presence of members of the inquiry committee, should be avoided. The victim should only be enquired by a sub-committee comprising women, and another sub-committee – consisting of men – should interrogate the male accused. In this scenario, the requirements of natural justice may be met through written cross-examination by both the victim and the accused on their respective statements, without facing each other physically.

Members of the two sub-committees may formulate their respective recommendations based on the evidence recorded and documents exhibited during the separate investigations so conducted and forward them to the competent authority for final decision.

The writer is a consultant in human resources at the Aga Khan University Hospital. He can be reached at: [email protected]

Originally published in The News