Conciliation Under the POSH Law

Introduction

In the changing workplace landscape, the POSH Act, 2013, is crucial for ensuring a safe and respectful professional environment. Within the POSH Act, 2013’s array of redressal mechanisms, Conciliation emerges as a key player, providing an alternative route for resolving sexual harassment complaints. In this blog post, we will navigate through the core aspects of conciliation under the 2013 Act, exploring its definition, rationale for its inclusion, the procedural intricacies, challenges faced, and the invaluable benefits it brings to the table.

What is Conciliation?

Conciliation is a process of resolving disputes or conflicts between parties in the presence of a neutral third party, known as a conciliator. The aim of conciliation is to facilitate open communication, promote understanding, and reach a mutually agreeable resolution without the need for a formal inquiry proceeding.

What is Conciliation under the POSH Act, 2013?

Section 10 of the POSH Act, 2013 is the provision relating to conciliation. The section states the following,

(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:

Provided that no monetary settlement shall be made as a basis of conciliation.

(2) Where settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.

(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.

(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

Under the POSH Act, 2013, parties involved in sexual harassment complaints have the option to choose between two distinct redressal mechanisms: inquiry and conciliation. Conciliation is a specific process where both the complainant and the respondent willingly engage in discussions with the goal of addressing and resolving their concerns through mutual agreement. Conciliation under the POSH Act, 2013 can be done in cases involving minor instances of sexual harassment.

What is the process of Conciliation?

The process of conciliation under the POSH Act, 2013 involves several key aspects. Let us discuss the process of conciliation in detail:

1. Filing of the complaint of sexual harassment: Prior to the commencement of any redressal mechanism, the aggrieved woman must submit a written sexual harassment complaint to the Internal Committee (IC).
2. Request for Conciliation: As per Section 10(1) of the POSH Act, 2013 the request for conciliation has to be made by the aggrieved woman. Upon receiving the request of the aggrieved woman, if the IC thinks that the case is suitable for conciliation then the IC can accept the request.
   

   Is it mandatory for the IC to accept the conciliation request?

   The IC has the power to accept or reject the request of the aggrieved woman for conciliation. This is because Section 10(1) uses the sentence “IC may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation.”
   After IC determines that conciliation is appropriate for a particular case, the next step involves obtaining the respondent’s consent. The respondent’s agreement is equally essential to initiate the redressal process through conciliation.

3. Appointing Conciliator: In the conciliation process under the POSH Act, 2013, the IC can serve as the conciliator. The IC can appoint a quorum comprising a minimum of 3 members, including the Presiding Officer and preferably the External Member, to act in the capacity of a conciliator.
4. Initiation of Conciliation: Once the consent of the respondent is obtained, the IC can initiate the conciliation procedure. Throughout this process, the involved parties are expected to engage in open communication regarding their concerns with the aim of reaching a mutually agreeable resolution.
5. Conciliation Settlement Agreement: Upon reaching mutually acceptable terms, the IC is responsible for documenting the settlement agreement and securing the signatures of the parties involved. Subsequently, the IC is required to forward the executed settlement agreement to the employer for implementation. A copy should go to the aggrieved and the respondent as well.
6. Concluding Conciliation: In cases where the parties successfully reach a settlement through conciliation, there is no necessity for a subsequent inquiry. Only in instances where conciliation proves unsuccessful does the IC bears the responsibility to initiate an inquiry.

What is the role of IC in conciliation?

The IC does not play an active role in the actual conciliation discussion. The IC’s primary function is to oversee and manage the conciliation process as a neutral entity, ensuring that it adheres to the guidelines and principles outlined in the POSH Act. The IC also has to educate the parties about their rights, duties and the procedure of conciliation.

Know more about the role of Internal Committee Members.

When is conciliation not recommended?

Conciliation is only recommended in minor cases of sexual harassment. Conciliation may not be recommended in certain situations involving sexual harassment complaints:

1. Serious Offences: In cases where the alleged sexual harassment involves severe misconduct or criminal actions, conciliation may not be appropriate. Serious offenses may warrant a more comprehensive inquiry or legal proceedings.
2. Non-Voluntary Participation: If either the complainant or the respondent is unwilling to participate voluntarily in the conciliation process, attempting conciliation may be counterproductive.
3. Power Imbalance: A significant power imbalance between complainant and respondent can undermine conciliation effectiveness, potentially coercing the aggrieved party into accepting an inadequate agreement. Consider a scenario where a junior employee, alleging sexual harassment by a senior executive, feels compelled under the executive’s influence to opt for conciliation. The senior’s subtle hints about the employee’s career prospects pressure her into a less advantageous settlement. This results in an agreement that falls short of addressing her grievances, mainly favoring the executive. Such instances demonstrate how power disparities can unfairly sway conciliation outcomes.
4. Repeat Offenses: If the respondent has a history of repeated offenses or there is a pattern of sexual harassment in the workplace, conciliation may not be the most effective way to address the issue. In such cases, a more thorough investigation or legal action may be necessary to prevent further occurrences.

Challenges in Conciliation

Conciliation, while a valuable alternative dispute resolution method, comes with its set of challenges. Here are some common challenges associated with conciliation:

1. Power Imbalance: Power dynamics between the complainant and the respondent can create challenges. If there is a significant power imbalance, the party in a weaker position may feel pressured to agree to terms that may not be entirely fair.
2. Difficulty in unorganized sector: It is very difficult to get the parties in the unorganized sector together for conciliation because of varied factors such as communication barriers, lack of awareness, cultural sensitivity, etc.

Benefits of Conciliation

1. Active Participation and Flexible Resolution by the Parties: During conciliation the parties get to actively participate. The active involvement of parties allows for the customization of solutions. Unlike a one-size-fits-all approach, conciliation permits the crafting of agreements that specifically address the unique circumstances of the case, promoting a more tailored and effective resolution.
2. Preserving Workplace Relationship: The conciliation process emphasizes open communication and negotiation, which can contribute to maintaining positive relationships between the complainant and the respondent. This is particularly crucial for fostering a harmonious work environment.
3. Flexibility in Solutions: Conciliation provides flexibility in crafting solutions. Parties have the opportunity to tailor agreements to their specific needs, which can be beneficial in addressing the nuances of individual cases.
4. Timely Resolution: Conciliation often leads to a faster resolution compared to a formal inquiry process.
5. Cost-Effective: Compared to formal inquiry proceedings, conciliation is often a more cost-effective option.

Conclusion

In conclusion, conciliation’s voluntary nature fosters active participation, open communication, and flexible solutions. Despite challenges, its pivotal role in preserving workplace relationships and ensuring timely, cost-effective resolutions highlights its importance. In the journey towards a secure and respectful professional environment, conciliation serves as a beacon, emphasizing collaboration, understanding, and tailored resolutions.

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