Introduction
The Sexual Harassment of Women in the Workplace (Prevention, Prohibition, and Redress) Act[1], commonly known as the POSH Act was passed in 2013 with an aim to protect women against sexual harassment at the workplace and prevent the same. The Act defines sexual harassment, provides a complaints redressal mechanism for women employees and imposes certain duties on the employer.
This article aims to cover the main provisions relating to the POSH Act and further, provides a detailed procedure for filing a complaint when a women employee faces sexual harassment at the workplace, along with the role of the complaints committee. Read on!
Main Provisions Of The POSH Act, 2013
1. Applicability And Scope Of The Act
The POSH Act extends to the whole of India and aims to prevent sexual harassment at the workplace. Presently, the statute includes an ‘aggrieved woman’ within its ambit who in relation to a workplace, is a woman of any age, whether employed or not and alleges to have been subjected to any act of sexual harassment[2]. Thus, the aggrieved woman can be a temporary or regular employee or a daily wage worker or one who is expressly or impliedly employed. Further, the term ‘workplace’ includes both organised as well as unorganised sectors, which also includes a dwelling house or a home within its ambit.
2. What Constitutes Sexual Harassment
Under the Act, sexual harassment includes the unwelcome acts or behaviour committed directly or indirectly such as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature[3]. Some examples of conduct amounting to sexual harassment include leering, eve-teasing, forcible invitation to dates, physical confinement against one’s will and any act violating one’s privacy. Additionally, the Act also mentions five circumstances of sexual harassment i.e. promise of preferential treatment in employment, the threat of detrimental treatment or about a woman’s present or future employment status, interference with her work, creating an offensive or hostile work environment and humiliating treatment likely to affect her health or safety[4].
3. Establishment Of The Complaints Committee
For inquiring into the complaints of workplace sexual harassment, the Act mandates the establishment of an Internal Complaints Committee (ICC) in an organisation that consists of 10 or more than 10 employees and a Local Complaints Committee (LCC) where an organisation consists of less than 10 employees or workers or when the complaint is against the employer himself.
4. Duties Imposed On Every Employer
The Act imposes certain duties on every employer such as providing a safe working environment, providing necessary facilities for the complaints committee to function smoothly at every step of the inquiry, providing assistance to an aggrieved woman in filing a complaint, treating sexual harassment as a misconduct under the service rules and initiating action against it[5]. It is important to note that an organization's policy must be drafted in such a manner that it is easy to understand and accessible for the employees. It must also be approved by a POSH expert or legal professional and must include all the relevant information. Organizations can also implement a gender-neutral policy where the ICC could gain authority to deal with such matters through the grievance redressal mechanism of the organization.
Further, it is a mandate to display the penal consequences of sexual harassment and the order constituting the complaints committee at such a place in the workplace where it is clearly visible to all employees. It is also a mandate to organise workshops and awareness programmes for the employees regarding sexual harassment at regular intervals along with orientation programmes for the members of the complaints committee[6]. Deciding the relevant mode of training and the instructor and the ways to make the training effective and interesting are some important factors that must be considered while planning the workshops, which are advisable to be conducted at least twice a year. As far as the unorganised sector is concerned, the District Officer has a duty of undertaking relevant measures for engaging the NGOs to create awareness of sexual harassment and the rights of women[7].
5. Penalty On An Employer For Non-Compliance
If the employer violates or attempts to violate any provision under the Act, a fine upto Rs. 50,000 can be imposed upon the first conviction[8]. The penalty becomes twice and also results in cancellation or non-renewal of the business license on the second conviction.
How To File A Sexual Harassment Complaint
1. Written Complaint
The first step is to make a written complaint to the ICC or LCC (as the case may be). In case the complaint cannot be made in writing, the aggrieved woman must be provided with all the reasonable assistance by the committee for making it in writing[9]. The complaint has to be made within a period of three months from the date of the incident or from the last date of the incident in case of a series of incidents. The time limit can only be extended to three more months if the ICC or LCC is satisfied that the woman was prevented from filing a complaint within the required time frame.
Further, there may be instances where the woman is not in a position to make a complaint on account of her being:
In the first case, a complaint may be filed by her legal heir, any relative or friend, co-worker or any other person who knows about the incident (after the woman’s written consent). In the second case, a complaint may be filed by her relative, friend, a qualified psychiatrist or psychologist, her guardian or any other person who is taking care of her or any person who has knowledge of the incident jointly with her friend[10]. In the third case, a person knowing about the incident may file the complaint after taking the written consent of the aggrieved woman’s legal heir.
2. Drafting A Written Complaint
A complaint must contain the following details in a proper manner:
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Details of the aggrieved woman such as her name, designation and the department under which she is working, contact no. and office address
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Details of the alleged harasser such as name, designation, department and office address
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Details of the incident including the time and date(s), description, details of relevant witnesses (if any), any document (such as text messages and emails) which can be used to substantiate the allegation and any other relevant detail
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Signature of the aggrieved woman
In case the complaint is made by a person other than the aggrieved woman, all the relevant details of that person including the person’s relationship with the victim and the reason why she is unable to file a complaint.
3. Right To Appeal
After the conclusion of allegations on part of the ICC, the aggrieved woman or the respondent can appeal in court within 90 days[11].
Role Of The ICC
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Informing The Accused
Once the complaint is received by the ICC, the accused is made aware of the allegations made against him along with the name of the complainant.
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Attempting To Resolve The Dispute Through Conciliation
At the victim’s request, an attempt is made to resolve the matter through conciliation before proceeding with the inquiry which does not include settlement by way of money within its purview[12]. Conciliation takes place through the communication of the victim with the accused, in the presence of the committee members. If the settlement is successful, the ICC records its basis and provides copies of the settlement to the aggrieved employee as well as the accused. The relevant action is then taken by the District Officer or employer and no further inquiry is conducted. However, if the accused fails to comply with the terms and conditions of the settlement, the aggrieved woman can approach the ICC again for conducting an inquiry[13]. In case the victim does not wish to resolve the matter by way of conciliation, the ICC then proceeds with an inquiry into the matter.
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Conducting An Inquiry
The ICC further starts an inquiry that has to be completed within 90 days. An inquiry is made into the complaint in line with the provisions of the service rules that apply to the respondent or according to the prescribed rules in absence of the former. If both parties are employees, they should be given an opportunity of being heard. For the purpose of conducting the inquiry, ICC has powers similar to those of a civil court in respect of summoning and examining any person on oath and requiring the discovery and production of documents. During the pending of inquiry and on a written request of the victim, the ICC may recommend the employer transfer the victim or the accused to another workplace or grant her leave for a maximum of three months or any other prescribed relief.
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Preparing An Inquiry Report
When the inquiry is completed, the ICC must provide a report of its findings to the employer within 10 days, which is also made available to both parties. The identity of the aggrieved woman, respondent and witnesses along with any other information related to them shall not be made public at any stage.
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Concluding The Allegations And Making Recommendations
If the ICC concludes that the allegation against the respondent has not been proved, the employer and the District Officer are recommended that no action is required to be taken in the matter. On the other hand, if it is concluded that allegations have been proved, it shall be recommended to the employer or the District Officer to take the relevant actions (within 60 days) in accordance with the provisions of the service rules of the concerned company. It also recommends the organization to deduct such an amount from the salary or wages of the accused as it may consider appropriate.
In case, the salary cannot be deducted due to the absence of the respondent from the duty or due to cessation of employment, the respondent may be directed to pay that sum to the aggrieved woman. If the respondent fails in doing so, the complaints committee further orders for recovery of the sum as an arrear of land revenue to the concerned District Officer. It is important to note that compensation is determined based on five aspects i.e. suffering and emotional distress caused to the woman, loss in career opportunity due to the incident, medical expenses, income and financial status of the respondent and the feasibility of such payment.
What To Do If There Is No ICC At The Workplace?
IC has powers of a Civil Court and it must follow principles of natural justice. It means that IC must conduct the thorough inquiry absolutely fairly, in a neutral manner and without any bias for or against anyone. Further, Delhi High Court in December, 2020 has stated in a decision that the Internal Committee cannot do Moral Policing.
Needless to say, in cases of sexual harassment at work, the ICC is the first and primary channel of dispute resolution. This is why the POSH Act mandates an ICC for every workplace with 10 employees or more. However, if your workplace does not have an Internal Committee, you may
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File a criminal case against the accused under Section 354 A of the Indian Penal Code which deals with sexual harassment, or-
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File a suit for damages in a trial court
Conclusion
Even though the POSH Act aims to ensure the safety of women employees at the workplace, real change can happen only when the provisions of the Act are implemented properly and every employer fulfils the duties imposed on him by the Act. Thus, it is only after employees are made aware of their rights against sexual harassment and redressal mechanism regarding it, among other significant factors, that there can be truly effective implementation of the Act.
T[1]he Sexual Harassment of Women in the Workplace (Prevention, Prohibition, and Redress) Act, 2013, No. 14, Acts of Parliament, 2013 (India).
[2]Section 2(a)
[3]Section 2(n)
[4]Section 3
[5]Section 19
[6]Ibid.
[7]Section 20
[8] Section 26
[9] Section 9
[10]Registering sexual harassment complaint, METISINDIA, https://posh.metisindia.com/template-for-registering-sexual-harassment-complaint/.
[11]Section 18
[12]Section 10
[13]Section 11
