Why is it important to spread awareness about PoSH?
A safe workplace is the basic right of every employee. Employees need to know,
- What is sexual harassment
- How to seek help if they face sexual harassment
- Who to report to if they face or observe sexual harassment
- What are the rights of the employee
In 2013, the government of India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also called the PoSH Act.
The Act holds an organisation and the employer legally responsible for taking measures to prevent incidents of sexual harassment at the workplace. One of the measures to ensure a safe workplace is through creating avenues for PoSH awareness among all the employees in the organisation. The awareness also helps them to understand what actions would be taken by the authority if the PoSH law is violated.
These measures make an employee trust the leadership and build a company culture where employees experience psychological safety. People will stay longer in a company where they feel physically and emotionally safe.
Who constitutes the PoSH Internal Committee (IC)?
The Internal Committee (IC)is responsible for the prevention, prohibition, and redressal of sexual harassment in the workplace. Under the Act, an employer is required to set up at IC at each office, branch, or unit of an organisation that has an employee headcount of 10 or more. Along with that, it makes recommendations towards the complaints brought in front of it.
- The IC is made up of 4 internal members and 1 external member
- It is chaired by the Presiding Officer who is the senior most female employee in the company
- More than 50% of the committee members have to be female
The main functions of the IC are:
- Implementation of the policy relating to the prevention of sexual harassment.
- Resolving complaints by the aggrieved based on the guidelines of the policy.
- Recommending actions to be taken by the employer.
- As per Section 11(3) the internal committee enjoys the powers same as that of a Civil Court and therefore
- It is empowered to initiate an inquiry into a sexual harassment complaints
- It has the power to summon witnesses and parties to state the committee.
- It enjoys the discretion of summoning evidence if deemed necessary to do so
How can companies implement PoSH?
According to the PoSH Act, all companies with more than 10 employees are expected to have the following in place:
- A company PoSH policy
- An Internal Committee (IC) with 1 external member
- Policy and IC contact information on the office notice board
- Awareness training for all employees every year between January to December
- Capacity-building session for all IC members every year between January to December
- Annual report filing to the District Officer at the end of every year
What are the steps taken when a case is filed?
PoSH Act mandates that while the inquiry happens, the Internal Committee (IC) members must adhere to the ‘principles of natural justice’. PoSH Act provides that both the parties involved, the complainant and the respondent, must be given a fair opportunity to present their side of the story. The respondent should be allowed to cross-examine the witnesses involved in the sexual harassment case.
The IC should investigate any written complaint of sexual harassment received from a complainant against any employee of the organisation. The IC should ensure that six copies of the complaint along with supporting documents (if any) and a list of witnesses are given. The complainant can hand over the complaint to any of the IC members which has to be forwarded to the Presiding Officer within 3 days of the receipt.
The following are things that an IC member can keep in mind while evaluating a case:
- Respond to the complainant with empathy
- Ensure that confidentiality is maintained
- If there is a physical threat to the complainant, ask if they wish to file a police complaint
- Strictly follow the timelines mentioned in the Act
- Keep the complainant and respondent updated about the timelines
- Record and document all meetings
What is the penalty if someone is found guilty under the PoSH Act?
An employer may punish an employee in the following ways for engaging in sexual harassment under the PoSH Act:
- The punishment prescribed under the organisation’s service rules
- Reduction of the respondent’s wages to pay compensation to the aggrieved woman (Section 13 of the PoSH Act).
In the absence of service rules in the organisation, disciplinary action may include
- Formal apology
- Counseling
- Written warning to the Respondent
- Change of work assignment/transfer for either the Respondent or the Complainant
- Suspension or termination of services of the employee found guilty of the offense
- Withholding of promotion
- Reduction to a lower stage of pay
- Withholding of increments of pay
- Removal or Dismissal from service
The PoSH Act, under Section 15, also provides for compensation for aggrieved women. In determining compensation, the following factors must be taken into account:
- Affected employee’s mental trauma, pain, suffering, and emotional distress;
- The loss of career opportunities caused by sexual harassment;
- Physical and mental health treatment expenses incurred by the victim;
- Whether the alleged perpetrator has a high income or a high status; and
- Whether lump sum or installment payments are feasible
- A failure by the respondent to pay the aforesaid sum will result in IC forwarding the order of recovery to the district officer concerned
What is the penalty for filing false complaints under the PoSH Act?
In case the complaint is found to be intentionally false and malicious, the complainant is liable for appropriate corrective action. Under Section 14, actions will be taken against complainants who “falsely or maliciously” use the protections.
According to the PoSH Act, disciplinary action can be taken under the service rules of the organisation against a complainant whose allegations are false, malicious, or made with knowledge that they are untrue.
The statute provides for disciplinary actions when no service rules exist, including written apologies, warnings, reprimands, censure, withholding of promotion, withholding of raises and increments, terminating employment, attending counselling, and performing community service. It is further clarified in the PoSH Act that a complaint need not be false or malicious just because there is insufficient proof to support it.
In cases where there is insufficient evidence to prove that harassment has taken place then IC would deem the complaint not proven and not file the same as a false complaint and the complainant will not be liable.
What is PoSH training?
The IC training is a very important tool for the committee members to understand the best redressal practices. It’s important for the IC members to understand the principles of natural justice, for them to ensure that IC proceedings are unbiased, maintain the privacy of all complaints, and ensure that individuals are not held guilty before an in-depth investigation finds them guilty of the acts they are being accused of.
The PoSH employee training is to be designed under the guideline in the Rules. It includes
- What is sexual harassment?
- How to seek help if they face sexual harassment
- Who to report to if they face or observe sexual harassment
- What are the rights of the employee – confidentiality, interim protection among others
The PoSH Act only covers women but the company policy is gender-neutral. Is this a compliance violation?
A company can choose to write a gender-neutral company policy and protect all female, male and transgender employees from sexual harassment in the workplace. In the policy, the organisation can include a statement expressing no tolerance for the sexual harassment of employees of all gender identities.
Additionally, you can also include the same clause of zero tolerance for sexual harassment in your CoC policy.
Can an overseas member be part of an IC?
The Act is silent on appointing a foreign national to the IC. Due to the absence of any specific restriction to this effect, a foreign national residing in India may be permitted to be a part of an IC, provided they meet certain criteria set out in the Act.
Can someone from the IC be appointed as the external member?
According to section 4 of the PoSH Act, an external member must be appointed who either has worked amongst non-governmental organisations committed to the cause of women or any person that is familiar with issues relating to women.
The external member is an essential part of any Internal committee as they provide an unbiased, neutral perspective. They are not involved or aware of any internal company politics and employee relationships, and thus base their opinions and findings on the presented facts and circumstances. Being an external member that is generally unknown to the workforce gives complainants and witnesses a sense of ease when talking about the harassment faced at the workplace.
What is the penalty for non-compliance with the PoSH Act?
An employer can be subjected to a penalty of up to INR 50,000/- for
- Failure to constitute IC
- Failure to act upon recommendations of the IC
- Failure to file an annual report to the District Officer where required
- Contravening or attempting to contravene or abetting contravention of the Act or Rules
Where an employer repeats a breach under the Act, they shall be subject to:
- Twice the punishment or higher punishment if prescribed under any other law for the same offense
- Cancellation/withdrawal/non-renewal of registration/license required for carrying on business
- All offenses under the Prevention of Workplace Sexual Harassment Act are non-cognizable
