Workplace Harassment In Pakistan

WORKPLACE HARASSMENT IN PAKISTAN

Workplace Harassment is one of the burning issues faced by the working women across the globe, preventing many who want to work to get themselves and their families out of poverty.

The situation in Pakistan is even worst. According to a survey, about 93% of the women working in different public and private sector organizations in Pakistan have experienced harassment, with private sector organizations having the highest number of reported cases.

Prior to 2010, there was no special law to deal with the cases of workplace harassment. There was even no clear definition of “harassment” and thus the offenders were tried under the following provisions of Pakistan Penal Code(1860);

1)    Section 354: Assault or criminal force to woman with intent to outrage her modesty.

2)    Section 354A: Assault or use of criminal force to woman and stripping her of her clothes.

3)    Section 375, 376: Rape and it’s punishment

4)    Section 509: Insulting modesty or causing sexual harassment, etc.

Pakistan Penal Code 1860, being a general substantive law could not effectively curb the rising number of cases. So in order to cope with the situation and to create a safe working environment for women, which is free of harassment, abuse and intimidation, the legislature passed “The Protection Against Harassment Of Women At The Workplace Act, 2010” (PAHAW ACT, 2010), which is aimed at ensuring the right of women to work with dignity.

This article will critically analyze the “PAHAW ACT, 2010”, and will also throw light on the recent amendments i.e “Protection Against The Harassment Of Women At The Workplace (Amendment) Bill, 2022”.

 

WHAT IS HARASSMENT?

According to section 2(h) of PAHAW ACT, 2010;

“Harassment” means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or  physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment.

 

THREE MAJOR MANIFESTATIONS OF HARASSMENT IN THE WORK ENVIRONMENT.

Workplace Harassment may take one of the following three forms.

1)    Abuse Of Authority:  A demand by a person in authority, such as a supervisor, for sexual favors in order for the complainant to keep or obtain certain job benefits, be it a wage increase, a promotion, training opportunity, a transfer or the job itself.

 

2)    Creating A Hostile Environment:  The typical “hostile environment” claim, in general, requires finding of a pattern of offensive conduct, however, in cases where the harassment is particularly severe, such as in cases involving physical contact, a single offensive incident will constitute a violation.

 

3)    Retaliation:  The refusal to grant a sexual favor can result in retaliation, which may include limiting the employee’s options for future promotions or training, distorting the evaluation reports, generating gossip against the employee or other ways of limiting access to his/her rights. Such behavior is also a part of the harassment.

 

(According to the Federal Ombudsman Secretariat On Protection Against Harassment (FOSPAH) Annual Report 2022, the total number of complaints registered between 2018 to 2022 were 2169. In the public sector, 582 complaints were lodged by women and 148 by men. In the private sector there were 994 complaints from women and 445 by men).

 

INQUIRY PROCEDURE OF COMPLAINTS UNDER THIS ACT:

Under the Act, every organization shall constitute;

1)    An inquiry committee consisting of at least one female member,

2)    And a competent authority, within thirty days of enactment of this Act.

Moreover, the respective Governments shall appoint an ombudsman at the Federal and provincial levels.

Ø The complainant shall have the option to prefer the complaint to the ombudsman or to the inquiry committee.

Ø Upon the receipt of a written complaint, the inquiry committee or ombudsman shall communicate the charges and statement of allegations to the accused, requiring him to appear and submit a written defence and on his failure to do so without a reasonable cause, the committee or ombudsman shall proceed ex-parte.

Ø The inquiry committee shall enquire into the charge, examine the oral or documentary evidence and if it is considered necessary, may allow each party to cross-examine the witnesses against him.

Ø The inquiry committee or the ombudsman shall submit it’s findings and recommendations (i.e. it’s decision) and inform both parties and the management of the concerned organizations (competent authority) for implementation of the orders.

 

PENALTIES:

The competent authority shall impose the penalty recommended by the inquiry committee within one week of the receipt of such recommendations.

The punishments provided by this act may range from minor penalties like censure, withholding promotion or increment for a specific period etc, to major penalties like compulsory retirement, removal and dismissal from service, fine and so on.

(On failure of an employer of an organization to comply with the provisions of this Act, he shall be liable to fine which may extend to one hundred thousand rupees but shall not be less than twenty-five thousand rupees).

 

APPEAL AGAINST PENALTIES:

Ø An aggrieved person may prefer an appeal to the Ombudsman against the decision of competent authority within thirty days of such decision.

Ø Similarly, any person aggrieved by the decision of Ombudsman, within thirty days of such decision may make a representation to the Governor or President, as the case may be, and their orders in this regard shall be final.

 

 

LOOPHOLES IN THE EXISTING LAW:

                “Every Law Has Its Loophole” (Proverb)

PAHAW ACT, 2010 is the first of it’s kind legislative development in the country to provide legal protection to the working women ensuring equal right to work and the right to work with dignity. However, there are certain loopholes in the legislation that needs to be closed. Some of them are as under:

Ø It fails to entertain the harassment faced by domestic workers.

Ø It’s scope does not extend to the cases of harassment faced by the people during the course of travelling to and from workplaces.

Ø Exclusion of transgender people i.e.  Section 2(e) of the act defines complainant as a man or woman, disregarding the existence of transgender person.

Ø It fails to extend protection against harassment to students.

 

 

RECENT AMENDMENTS MADE BY THE LEGISLATURE:

In 2022, The Ministry of Human Rights with extensive input from women rights groups and lawyers drafted a bill “The Protection Against Harassment Of Women at the Workplace (Amendment) Bill, 2022” and thus enacted it on January 14,2022. Through this bill, they had tried to overcome the shortcomings present in the previous law (PAHAW ACT, 2010).

For example;

Ø Now the definition of harassment also includes “discrimination on the basis of gender”.

Ø The definition of workplace has been expanded  to include both the formal and informal workplaces.

Ø It provides legal protection against harassment to the students.

Ø It extends the scope of the Act to include domestic workers.

Ø Moreover, through this amendment bill, the procedure for holding inquiry has been regulated, and so on.

 

 

CONCLUDING REMARKS:

This Act requires all the public and private organizations to adopt an internal Code of Conduct and a complain mechanism aimed at establishing a safe working environment, free of intimidation and abuse, for all working women. It is based on the principles of equal opportunity for men and women and their right to earn a livelihood without fear of discrimination as stipulated in the constitution.

Moreover, with the introduction of “ The Prevention Of Electronic Crimes Act, 2016” (PECA 2016), online harassment of the working women such as Cyber stalking and Cyber bullying, can now be effectively dealt by the Cyber Crime Wing of the Federal Investigation Agency (FIA).

Last but not the least, the real test of this law will be it’s full implementation which requires political will. Steps must be taken to implement this law (Protection Against Harassment Of Women At The Workplace Act) in its true letter and spirit, only then the working women can come forward to play their due role in the progress and development of the country.

 

 

     Penned by:

                        Muhammad Samir Khan (7^th Semester)

                        Law College, University of Peshawar