Workplace Harassment: Federal Constitutional Court says sexual element required under law

The Federal Constitutional Court has held that a sexual element is essential for a complaint to fall within the scope of the Protection Against Harassment of Women at the Workplace Act, 2010.

In its 18-page judgement, the court said conduct that may be undesirable, inappropriate or harmful but has no sexual element cannot be entertained by the Federal Ombudsman under the harassment law. Such matters may instead be dealt with by the relevant organisation under its applicable service rules.

The judgement was authored by Justice Ali Baqar Najafi. A three-member bench headed by Chief Justice Aminuddin Khan and comprising Justice Najafi and Justice Syed Arshad Hussain Shah heard the appeals filed by Usman Shahid and Aqeel Abbas in a case involving Nadia Sarwar, an employee of the National Bank of Pakistan.

The court set aside the Islamabad High Court’s judgement of 31 December 2024 and restored the order passed by the president in the matter.

The court said the workplace harassment law was designed to protect both women and men from sexual harassment and could not be extended to every complaint involving general inappropriate behaviour.

It further held that an organisation retains the authority to take disciplinary action against inappropriate conduct under its own service rules when the alleged behaviour does not fall within the scope of the harassment legislation.

The judgement also clarified the respective roles of the Federal Ombudsman, the president and the high court. The court held that the president has the authority to hear a representation against a decision of the Federal Ombudsman.

OpenAI Agents Company struggles to track full scope of rogue activity

It said the high court’s power to interfere with an Ombudsman’s decision under its constitutional jurisdiction is limited to circumstances such as abuse or excess of jurisdiction, violation or misapplication of law, misreading or non-reading of evidence, or a breach of the principles of natural justice.

The case originated from proceedings initiated by the Federal Ombudsman following a complaint by Nadia Sarwar against the two bank officials. The Ombudsman had imposed the penalty of compulsory retirement on the officials under the workplace harassment law.

The two officials challenged the decision before the president. The president accepted their representations and modified the penalty from compulsory retirement to a reprimand.

The Islamabad High Court subsequently set aside the president’s order and restored the Federal Ombudsman’s decision. The two officials then approached the Federal Constitutional Court.

The constitutional court has now allowed their petitions, overturned the IHC judgement and restored the president’s order imposing a reprimand instead of compulsory retirement.

The ruling draws a distinction between sexual harassment covered by the 2010 Act and other forms of inappropriate workplace conduct. It makes clear that organisations may address the latter through their own disciplinary and service mechanisms where the conduct does not meet the legal threshold for proceedings under the harassment law.