Cohere Consultants is a passionately committed group of lawyers and gender specialists qualified under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to act as external members to Internal Committees. We support organizations with their diversity, equity and inclusion agendas. We are certified counselors and trainers.

We have a pan India presence through our offices in Bengaluru, Chennai, Delhi, Dehradun, Gurugram, Hyderabad, Mumbai and Noida.

We have the unmatched experience of advising on 2200+ cases and have trained over 17000+ people.

In this newsletter:

2020 is a year that will go down in history forever as the year the world was locked down at home in the Covid 19 pandemic. And yet, this cloud still has a silver lining, especially over the modern workplace and the lasting adaptive changes this year has ushered with it. Bidding adieu to the rollercoaster that was 2020 would be incomplete without a countdown to 2021. So here is a listing of our favourite climacteric events this year that impact workplace discrimination, sexual harassment, diversity, inclusion & equity in the workplace. Ready?

5 Times the Courts Spoke:

5 Times the Courts spoke, and we couldn’t help but take notice

4 Industry Trends:

4 industry trends that just warm our heart

3 times the courts stepped-in:

3 times the courts stepped in and enforced PoSH non-compliance fines

2 changes in workplace laws:

2 changes in workplace laws that are changing the game for the months to come

 1 mantra:

 1 mantra we think workplaces should focus on in 2021

5 Times the Courts spoke, and we couldn’t help but take notice

To say that our judiciary is the bastion of justice would be to push the pedal on stating the obvious. But as PoSH practitioners, we heavily rely and often enjoy the illuminating insights our judiciary provides in understanding the nuances of law and procedure. We could wax eloquently on the field day the courts have had this year with workplace sexual harassment, but won’t. We know you don’t have all day. So let’s just cut to the chase.

1. Thou shall not character assassinate a complainant

“When a woman complains against her male colleague for sexual harassment, her own efficiency or inefficiency or temperament or the fact that disciplinary proceedings were initiated or are pending against her, are completely irrelevant and extraneous to the inquiry.” Said the Delhi High Court in the matter of Anita Suresh vs Union of India, and we took note! The Court also pointed out that a complainant should only be transferred if she asks for it, or if she is found to have filed a false complaint.

The Delhi HC in what could easily be its finest hour went on to set the record straight on false complaints. It observed that a woman who is perturbed by an action of a male colleague, either through words, gestures or action, cannot be expected to have such clarity of thought, to know who all were present at the time of the incident, and who all may have witnessed the incident and remember their names and faces. The mere inability of a woman to name such witnesses cannot suffice to falsify her complaint.

2. Thou shall not retaliate against a complainant or witnesses

     In the case of Jata Shanker Mishra vs Internal Complaints Committee, the Allahabad High Court held that complaints on retaliation or intimidation by the Respondent against the aggrieved woman or witnesses would fall under the ambit of the ICC. In its words, “it cannot be said that the second complaint is not a part of the first complaint. Hence, it would be appropriate that the second complaint may also be adjudicated by the Internal Complaint Committee and there is no need for separate order for examining or inquiring by a Second Committee.” The Court says no hairsplitting and we agree!

3. Thou shall not give clickbait headlines

Okay, the courts didn’t say that, but we are! This case on our list was reported with all kinds of saucy headlines like “Moral Policing’ is not the job of the Management or of the ICC”. So just in case you were a teeny bit concerned of the ICC’s authority, let’s set the record straight. The PoSH Act empowers an IC to adjudicate on three issues only (i) If it finds sexual harassment in a complaint, the it can give recommendations to the employer on how to redress it; (ii) If it finds no sexual harassment, then it can recommend that no action is to be taken; and (iii) if it finds a complaint to be false or malicious or that it has been mislead, it can ask for a separate inquiry to be instituted into the matter. That’s it.

And the Delhi HC merely reiterated this. In Bibha Pandey vs Punjab National Bank & Ors, the lhi High Court held that “ The ICC cannot make comments on the personal conduct of the parties and the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not, to that effect.”

In the context of complaints that were NOT made out to be sexual harassment, the Court clarified “`Moral Policing’ is not the job of the Management or of the ICC. Any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does NOT affect the working and the discipline of the organisation and is NOT contrary to the Rules or code of conduct binding on the said employees.” Phew!

4. Thou may consider hearsay evidence

In Bhuwan Chandra Pandey vs Union of India, the Uttarakhand High Court held that “In a departmental enquiry, guilt need not be established beyond reasonable doubt. Proof of misconduct is sufficient. All material, which are logically probative for a prudent mind, are permissible. There is no allergy even to hearsay evidence provided it has reasonable nexus and credibility.” The standard of proof required is simply that of “preponderance of probabilities” and even circumstantial evidence or hearsay may be admitted to provide it is credible and has a reasonable nexus to the case.

5. Sexual Harassment is illegal, headlines notwithstanding

Our favourite clickbait headline though was the reporting of the Jammu & Kashmir High Court in the case of Devi Dayal Khajuria vs State & Ors that went “Held: Sexual Harassment not an offence under PoSH Act”. Wait, what?

So basically, the Court went into technical specifics and said “Although, sexual harassment is defined in Section 3 of Act of 2013, yet subjecting a woman to sexual harassment is not an offence under the provisions of the said Act. As per the Scheme of the Act of 2013, it has been made incumbent upon every employer of a workplace to ensure that the women are protected against sexual harassment at workplace.”. Before this puts you at any further unease, sexual harassment at workplaces is illegal, six ways to Sunday.

So what does the verdict even mean? The Court in this case was trying to clarify semantically, that the PoSH Act does not punish individuals for committing sexual harassment in the workplace, but punishes employers who don’t address sexual harassment in their workplaces or comply with the provisions set out in the PoSH Act. Sigh. Wasn’t that fun?

4 Industry trends that just warm our heart

While Courts always have us in awe, this year, the industry wasn’t far behind. We dare say 2020 was a formative year for Diversity & Inclusion. The UN women’s day theme “Each for Equal” was truly brought to life by organizations who went an extra mile to gap the bridge. Our fave four updates are –

1. HUL’s policy to help staff facing domestic abuse

Following reports of rising instances of domestic violence, as employees started working from home since the worldwide lockdowns – Hindustan Unilever Ltd (HUL) has rolled out a policy to help employees cope with domestic abuse, underscoring how India Inc. is expanding the scope of its human resource policies to make them worker-friendly. As per the policy, employees who are subject to, or are survivors of, acts of physical or emotional abuse outside the workplace can access urgent medical care and psychological counseling for themselves and their families, besides paid leave of up to 10 days. Kudos, HUL.

2. Zomato announced Menstruation Leave

Earlier this year, Zomato announced that it would allow female and transgender employees to take up to ten days of paid “period leave” per year, as part of an effort to combat what it said was stigma around menstruation. More power to Zomato in understanding the power of equity in inclusion.

3. Corporate Disability Inclusion found its legitimacy

Corporate Disability Inclusion found its legitimacy in the Disabilities Act, 2017 where reasonable accommodation was asked of the private employer by the regulator for the first time. In the 2020 pandemic, Accenture went a long mile with their ‘Disability Adjustment Request’ platform that acts as a one-stop-shop for all reasonable accommodation requirements of their people including assistive technologies and ergonomic adjustments while offering a very personalized experience.  Accenture has an Accessibility Centre of Excellence that helps their people choose the right assistive technology and enablement devices. Their in-house platform called Dhvani that enables voice to text and text to voice conversion and supports communication for people who have speech, hearing, and language disabilities. Dhvani is integrated with all their virtual collaboration platforms. Additionally, all of their web and technology applications are built such that they are completely accessible for persons with disabilities.

4. PoSH commitments stayed strong in the virtual workplace.

Corporates moved their workplaces virtual. And happily, traded off their in person classroom PoSH training experience for a virtual webinar and online training platforms. We dare say, this was our busiest December in years. In the same breath, it is necessary to laud efforts of multiple corporates to revisit their policies through the diversity, equity and inclusion lens. As well as restructure their ICC’s to accommodate virtual WFH employees. Make workplaces safe – online and offline is commitment we live for

3 times the courts stepped in and enforced PoSH non-compliance fines

The brickbats often accompany the bouquets. And pandemic or not, the Courts  and Complaint Committees stayed their course.

1. Tamil Nadu State Commission

Tamil Nadu State Commission for Women directed Chennai based Loyola College to pay Rs 64.3 lakh compensation to a sexual harassment victim. The compensation covers remuneration for 81 months, damages for mental agony, unkind words of sexual harassment and for filing a false complaint against the victim.

2. Delhi High Court

In October 2020, Spicejet had to make amends for terminating the services of an employee who had complained of sexual harassment with a settlement of Rs. 10 lacs when facing the music in the Delhi High Court.

3. Supreme Court of India

And the Supreme Court of India, always at the fore, directed the Centre to pay compensation quantified at Rs.1,00,000/­ to Nisha Priya Bhatia, a former RAW Agent, for violation of her fundamental rights to life and dignity, as a result of the improper handling of her complaint of sexual harassment.

2 changes in workplace laws that are changing the game for the months to come

1. New Labour Codes:

  • Fresh off the boat  are the new Labour Codes. The Government of India had decided to consolidate twenty nine (29) central labour laws into four (4) labour codes, namely,
  • The Code on Wages, 2019 (the “Code on Wages”);
  • The Code on Social Security, 2020 (the “SS Code”);
  • The Occupational Safety, Health and Working Conditions Code, 2020 (the “OSH Code”); and
  • The Industrial Relations Code, 2020.

The Rules under these codes are currently being formulated. Once notified, this shall form a comprehensive and updated framework for labour laws in the modern workplace. And yes, the Maternity Benefit Act that mandates 6 months maternity leave and provision of creches by employers though subsumed by the SS Code, is coming back stronger then ever before with enhanced penalties on employers for non-compliance. So watch out!

2. Transgender Persons

On January 10, 2020, the Transgender Persons (Protection of Rights) Act, was notified in a significant hurrah moment for years of struggle by activists. Not just limited to adding three fields in forms seeking a response to “what sex”, the law goes after establishments engaging in unfair treatment of transgender persons in employment or those denying them employment and mandates that every establishment designate a complaints officer. This is a new age of diversity in the workplace with its own inclusion mandate.

And before drumroll on our final countdown, a runner up please.

While it continues to be mandated that all private companies are to make disclosure of compliance under the PoSH Act through their Annual Board Report, earlier this year, a reduction in penalty for non-compliance of this provision (Rule 8 of the Companies (Accounts) Rules, 2014 issued under Section 134 of the Companies Act) was announced by the Ministry of Company Affairs (MCA). Currently, if a company is in default in complying with the provisions of this section, the company shall be liable to a penalty of Rs. 300,000/- (three lakh rupees) and every officer of the company who is in default shall be liable to a penalty of Rs. 50,000 (fifty thousand rupees). While the MCA have made non-compliance cheaper from their end, without the earlier penal punishments of imprisonment, convictions shall rise. Also,  non-compliance can still be a costly affair what with the courts and commissions fining at large. So lets not think of it as an option – at all.

1 mantra we think workplaces should focus on in 2021 – Mental Wellness

And finally the big ONE.

As the Forbes Magazine eloquently pointed out earlier this year, Covid-19 has put mental health front and centre for organizations as the safety of employees becomes paramount to survival. “New research is indicating that employees are putting in more hours than ever, experiencing burnout and exposure to added stressors such as finances or the inability to separate personal and professional commitments and roles. These shifts and changes are pushing employee well-being up the ladder of corporate priorities.”

While mental illness is a focal point of several workplace policies in light of the Disabilities Act, 2017 and the Mental Healthcare Act 2017; mental wellness enjoys no special treatment. What’s in a word you ask? Everything. Getting down to brass tacks, 36% of Indian employees are suffering from mental health issues and 50% are worried about an uncertain future due to the Covid-19 pandemic.

Motivated and happy employees are the key to sustainable productivity in the changed workplace. And this needs a whole new learning for HR – regular check ins with employees, mandatory leave to prevent burnout, wellbeing education workshops, retraining of managers with a focus on spotting red flags, even sweating the seemingly small stuff like safe travel arrangements to work is a big plus on reassuring employees.

2020 was a landmark year for diversity, equity and inclusion in the Indian workplace. Lets hope as we countdown to 2021, and the world continues to change, that the lessons learned in this year only strengthen our resolve to have kinder, more inclusive workplaces in the months to come…After all, heavily borrowing from Martin Luther King, – The ultimate measure of any of us is not where we stand in moments of comfort and convenience, but where we stand at times of challenge and controversy. 

On that happy note … 5…4…3…2…1….


Always your partner in Keeping it Right,

Team Cohere