As you already know, every employer who has 10 or more employees, workers, contract workers, interns, etc. in a workplace has to mandatorily constitute, in accordance with law, an internal complaints committee (“ICC”) for receiving and redressing complaints of sexual harassment at the workplace. The ICC, as constituted, must satisfy the following conditions:
- It should consist of a presiding officer who shall be a woman employed at a senior level at the workplace from amongst the employees.
- Not less than two members from amongst employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
- One member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
- At least one-half of the total members are women.
The law provides that the presiding officer and every member of the ICC shall hold office for such a period, not exceeding three years, from the date of their nomination to the ICC by the employer. This effectively means that ICC members cannot hold office for more than 3 years, and every 3 years, the employer has to reconstitute the ICC, keeping the above conditions in mind. As the law was passed in 2013 and became effective on December 9, 2013, assuming that several employers would have constituted the ICC sometime in December 2013 or January 2014, it may be time for such employers to reconstitute the ICC.
In relation to the ICC and the applicability of the law, employers must also keep the following in mind:
- The law does not state that the ICC should be constituted by only those employers who have employed women. It provides that ICC must be constituted by employers who have 10 or more employees, workers, interns, contract workers, etc., irrespective of their gender. The reason being that the law is not just for prevention and redressal of sexual harassment cases filed by women employees, workers, etc. of the workplace but also for those women who are visitors to a workplace.
- The terms aggrieved woman, employee, and workplace under the law have very wide definitions to ensure wide applicability so that maximum kinds of organizations are covered and relief is provided to as many as possible.
- The ICC has to be constituted by an order in writing.
- ICC has to be constituted at all administrative units or offices, if the offices or administrative units of the workplace are located at different places or at a divisional or sub-divisional level.
- In the event that the offices or administrative units of the workplace do not have a senior-level female employee, the presiding officer has to be nominated from any other workplace of the same employer or from another department or organisation.
- Constituting the ICC is not an option. It is a mandatory provision. Non-compliance does not only lead to monetary penalties and/or cancellation of the license to do business as provided in law, but also leads to reputational damage to the organization, payment of compensation, which may run into crores, loss of business, a lack of trust, and low productivity at the workplace.
The presiding officer or any other member of the ICC can also be removed from the position in certain situations. For example, in a situation where they disclose information on any matter of sexual harassment (which is required to be kept confidential at all times) or abuse their position in a manner that renders their continuance in office prejudicial to the public interest,. The vacancy that will be created due to such removal (or any casual vacancy for that matter) has to be filled by a fresh nomination.