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Serving two masters: Why it’s not a good idea to have in-house lawyers and HR people in the office sexual harassment committee

Often, when an organisation constitutes an Internal Committee (“IC”) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, (“the Act”), it tends to nominate the usual suspects. A senior woman employee, a member of the Human Resources (“HR”) team, and quite often, the company’s lawyer or a member of the legal team, are appointed to the “internal” posts.

Legal professionals who draw an employee’s salary are not permitted to act as “advocates”. This is clear from the Bar Council of India’s Rules of Professional Conduct and more recent resolutions from the professional regulator. The reason for this restriction is that a person employed with an organisation owes a primary duty of care and loyalty to that organisation. Advocates, on the other hand, owe a duty to the court or the forum before which they appear. For an employee, especially one responsible for the legal well-being of the organisation, to then appear as an advocate, would present a conflict of interest.

A similar conflict would arise when such a person is empaneled on the IC. Section 11 of the Act makes it clear that the IC has to function as an independent body when it fulfills its quasi-judicial functions. The presence in it, of a legal professional whose primary responsibility is to look out for the best interests of the organisation, is at complete odds with the spirit of the Act, which is to provide – through an independent and unbiased mechanism – justice and succor to survivors of sexual harassment. Such an appointment not only taints the IC with the brush of “partiality” but also places the “in-house” lawyer in the uncomfortable position of having to serve two masters – one that pays the salary and one that requires impartial justice.

The same principle would also vitiate the inclusion in the IC, of a lawyer from the law firms retained by the organisation. Such firms are biased by the very nature of their agreements with the organisation because they have to act to minimise the organisation’s liability.

Who should be appointed to office sexual harassment committees?

For similar reasons, it is also difficult to justify the appointment in the IC, of a member of the HR team. The HR team, tasked with formulating and implementing codes of conduct, undertaking disciplinary actions, and enforcing the outcomes of such actions, has primary responsibility for matters of workplace conduct. So it may seem like a good idea to have one of its members on the IC, but it is usually counter-productive to the IC’s independence.

As Laurie Ruettimann puts it, “At its core, HR exists to protect the company against employee-related risks. Shareholders and investors want executive leadership teams to improve productivity while keeping wages low. Business owners and leaders need a way to monitor and manage employee activities while retaining distance from the workforce. And most bosses want to keep their hands clean and outsource the emotional labor of managing people to someone else.”

Members of the HR team have been closely involved in almost all inquiries into complaints of sexual harassment at the workplace that I have observed. They often hold material evidence (such as attendance logs and performance appraisal notes) and may be critical witnesses to character or other facts, for the parties. Members of the HR team would, if appointed to the IC, end up playing the role not only of witnesses but also those of judge and executioner.

Membership to the IC comes with the immeasurable responsibility to provide care and protection to survivors of sexual harassment and prevent repeat offences. On the face of it, such appointments appear to be within the parameters of the law. But if an appeal is lodged against an order of an IC, its composition will inevitably be the first issue raised. Employers should therefore, consider the formulation of ICs at length and appoint persons most well-equipped to do the job, rather than merely appoint by designation.

Employees from outside the legal and HR teams, particularly those who have demonstrated skills in people management and dispute resolution, irrespective of their job titles or designations, may be better placed to help it take a balanced view. After all, it is possible to achieve a functional understanding of legislative matters through study but it takes years to accurately gauge human psychology and behavior.

Suhasini Rao is the Founder, Director (Products and Operations) at CubeRoute.

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