Safety!! To be felt within ourselves, around us—home, streets or workplace.
Today, most of the population of the world are working population and the rate is steadily increasing day by day. While we are outside of our homes working in certain workplace, safety remains the primary concern of every working individual. Providing a safe work environment and culture where dignity at work is paramount and is free from all forms of harassment, bullying, intimidation and unlawful discrimination is inevitable responsibility. Let us pinpoint what sexual harassment is? And what are the laws to prevent such activities at workplace.
What Sexual Harassment really is?
Sexual Harassment is any unwanted or unwelcome attention of sexual nature towards another person, which creates an intimidating, hostile or offensive environment for the recipient.
It often jeopardize victims’ physical and emotional health, and typically the more severe the harassment, the more severe the reaction. It is capable of bringing down ones dignity, confidence, causing mental and physical disturbances. Recent research has proved that sexual harassment result in poor self- esteem, maladjustment and decreased creativity. Number of sexual harassment cases is being registered while most of the incidents remain un-notice, unheard.
A single incident may constitute sexual harassment. Any form of sexual harassment is a serious offence and calls for immediate action. Many of the international treaties, conventions like Universal Declaration of Human Rights have treated sexual harassment in the workplace as a form of sex discrimination, a violation of health and safety rights guaranteed to workers under International Labor Organization.
Sexual Harassment at workplace is addressed by few laws of Nepal which are as:
Basically, there are laws to regulate such activities at work place:
- The Labour Act, 2074 B.S. and Regulation 2075 B.S.
This act does limit any sexual harassment taking place at work environment amounting to some disciplinary action. But, it does not explore entire dimension of sexual harassment.
- Criminal Offences (Punishment and Execution) Act, 2018 A.D.
Sexual harassment is prohibited in Country Muluki Criminal (Code) Act 2018 A.D., Muluki Criminal Procedural (Code) Act, 2018 and Criminal Offences (Punishment Providing mechanism and Execution) 2018, which reads as:
“No one shall commit Sexual Harassment to anybody”.
Perpetrator is liable of imprisonment of 3 years and fine up to 30,000.
- Sexual Harassment at Workplace Prevention Act, 2071 B.S.
This is the specific law enacted by Government of Nepal that ensures to protect the rights of every individual to work in a Safe environment without being the subject of harassment, while only handfuls of people are aware of this law.
This paper tries to highlight what harassment really is? And how workers are protected under the “Sexual Harassment at Workplace Prevention Act, 2071 B.S.”?
Meaning of sexual harassment under the Act, 2071:
- Physical contact and advances,
- Showcasing or displaying pornographic materials,
- Expressing sexual motives in the form of writing or by verbal, non-verbal means,
- Demand for sexual favours, and
- Flirting or harassing with sexual motive.
Any act done for educational, informative, investigating purpose or in the course of treatment or for the protection, shall not be considered sexual harassment as per the Act. In addition to this, act lays down certain duties and responsibilities required to be followed by the employer. For example: making necessary by-laws to prevent such activity.
The act provides two complain mechanism:
- Internal Mechanism
Any employee/ employer or service provider facing sexual harassment at work place or their representative may file a written or verbal complaint at company’s internal management committee within 15 days. Immediate action will be carried out against the occurrence of sexual harassment. If found guilty upon the investigation, the committee has power to do any of the following:
- Reconciliation between the parties upon their mutual consent.
- Oder the perpetrator to make an apology to the victim.
- To warn perpetrator from carrying out such activities in future.
- Management of reasonable amount of compensation from the perpetrator.
- To take departmental action against such perpetrator.
The decision against the complaint will be made within 15 days from the date of filing of complaint.
- External Mechanism
This wing is regulated by the Chief District Officer (“CDO”), where by victim of sexual harassment can file a complaint against the perpetrator within 90 days backed by evidence. Similarly, victim or their representative can also file a complaint at CDO against the internal management committee for not rendering the decision within the time specified or is not satisfied with the decision so made by the committee.
The Sexual Harassment Prevention Act provides protection to victim. The complainant is prevented from being dismissed, transferred or in any other way, penalized on the account of his/her complaint. In fact, the perpetrator may be transferred to other places and away from the victim.
Following punishment is imposed upon perpetrator as per the act:
|S.N.||Offence||Imprisonment||Fine (in Rs.)|
|1.||Sexual Harassment||6 months||50,000|
|2.||Employer failing to comply with the duties and responsibilities||–||25,000|
|3.||Repetition of Offence||Double the punishment|
|4.||Filing false complaint or lawsuit of sexual harassment||
|5.||Any physical or mental harm||Reasonable compensation|
Further, as per the act, the victim is entitled to receive compensation for the actual expenses incurred during the course of filing and defending of his/her complaint. In addition, person who has committed sexual harassment under the act needs to provide reasonable compensation to the victim for causing any physical or mental harm.
The sentencing policy of the act is not harsh in comparison to Criminal Offences (Punishment Providing mechanism and Execution) 2018 A.D. But, the Sexual Harassment at Workplace Prevention Act, 2071 B.S. does not prevent the aggrieved party from filing legal proceedings under Criminal Code. Hence, victim may seek remedies either under Sexual Harassment Prevention Act or under Criminal Code, depending upon the remedies and protection he/she is seeking.
The Sexual Harassment at Workplace Prevention Act, 2071 B.S. is the progressive act aiming to prevent and reduce any forms of sexual harassment at work place.