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How to Document Sexual Harassment at Workplace?

Sexual harassment has become a universal concern for employers everywhere, even while working virtually. The implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (PoSH) Act, 2013 has proven tremendously beneficial but there is still a need for prompt action and quick redressal.

Investigating sexual harassment at workplace can be a complex process given the sensitivity that is associated with it. Documenting sexual harassment at workplace is an essential step involved in conducting an effective investigation of the case. Investigation involves an extensive plan which includes deciding who’ll investigate, what questions will be asked, and what evidence is required. Documentation eases the investigation procedure on all fronts.

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What does Documentation mean?

Documenting in the light of sexual harassment at workplace can be divided into two phases:

  1. Pre-investigation documentation, and

  2. Post-investigation documentation.

Taking notes on what transpired and preserving records of any written or electronic communication that was part of the harassment is what pre-investigation documentation entails. This could include text messages, emails, or social media posts from the victim, harasser, witness, or others.

Further, the written and kept record of a sexual harassment investigation can be referred to as post-investigation documentation. These documents are required by law, and keeping them lessens the risk of legal culpability of the Internal Complaints Committee (IC) if the order is challenged in court.

Many companies mistakenly believe that their responsibilities are fulfilled after executing the recommendations of the IC, and they pay no or very little attention to the investigation’s documentation and record-keeping.

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Why is Documentation of Sexual Harassment at Workplace Important?

Pre-investigation documentation is significant for the following reasons:

  1. Although not needed to make a complaint, it tends to assist the investigators figure out who to talk to and where to search. 

  2. It also serves as evidence for the aggrieved person to support their claim or accusations by keeping track of what happened and when. 

  3. It can also prove beneficial in proving that the harassment is serious or pervasive, depending on the circumstances of each case.

Post-investigation documentation is significant for the following reasons: 

  1. It is a key part of the investigation process. The IC investigation can be challenged in court by the defendant, and all of the records can be examined for a judicial review.

  2. The Delhi High Court ordered the Registrar of JNU to disclose documentation relevant to the petitioner’s complaint, the IC’s recommendations, and evidence on the processing of those recommendations in Arti Devi v. Jawaharlal University.

  3. The failure to produce key papers and files connected to a sexual harassment accusation might make an inquiry more difficult. As a result, adequate documentation must be maintained and stored in a location where it is easily accessible. 

  4. Maintaining comprehensive documentation not only helps IC substantiate its activities but also prevents falling foul of the court in today's world, when both the complaint and the responder are not hesitant to appeal a ruling.

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Legal Mandate for Documentation

Section 25 of the PoSH Act, 2013  expressly stipulates that any officer may be authorised by the government to investigate the sexual harassment inquiry records and the workplace.

How to document Sexual Harassment at Workplace?

The primary aim of pre-investigation documentation is to ascertain who, what, when, and where. Therefore, it is significant to have as much information as possible.

  1. Be as specific as possible. For instance, if someone makes a sexually coloured remark, the remark itself must be noted. 

  2. Document when and where the incident took place exactly. For example, in conference room A, or during the weekly staff meeting. This will deprive the defendant from creating false alibis.

  3. Record who was involved. This goes beyond the aggrieved person and the accused. Take down names of potential witnesses and people who could possibly know of the incident.

  4. Keep a record of everything that demonstrates that the incident was discussed with other people after it took place. This indicates that the subject of the incident came up during conversations. It also includes text messages, emails, recorded calls, or any other electronic communication with friends, colleagues, or peers.

  5. It doesn’t matter if the aggrieved person can’t remember specific details. What is important is that the investigators are able to narrow down their investigation as much as possible so that there is no scope for ambiguity.

    Train your IC to investigate Sexual Harassment at Workplace

Documents required to be maintained from Sexual Harassment Investigation

Post-investigation documents are required for the reasons stated above. It is important that the investigators, primarily IC, know what documents must be recorded from their investigation. These include:

  1. Complaint’s copy,

  2. Any proof affiliated with the complaint,

  3. List of witnesses accompanied with the complaint,

  4. Notice issued to the respondent by the IC,

  5. Respondent’s reply,

  6. A list of witnesses of the respondent,

  7. Both complainant’s and respondent’s statement,

  8. Cross-examination statements of witnesses,

  9. Report of the inquiry (signed by all IC members),

  10. Representations made by the parties in opposition to the report,

  11. Confidentiality agreements signed by the complainant, respondent, witnesses, and others as indicated by the committee,

  12. All of the meetings’ minutes, verbatim,

  13. Meeting notices in their entirety, and

  14. Any order or directive given to management, in chronological order.

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