Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules (commonly called as the POSH Act and Rules) enacted by the Government of India in the year 2013 was a remarkable measure in the history of India against sexual harassment at workplace. The POSH Act superseded the Vishakha Guidelines which was instituted by the Supreme Court of India in 1997 to protect women against sexual harassment at workplace.
The POSH Act asks all employers to comply to a set of measures to prevent, prohibit and redress sexual harassment at the workplace. Note that the aim of the POSH Act is to protect not only women employees at workplace, but also all women at the workplace. This means an employer has the responsibility provide protection to all women who enter his/her workplace. This can be an employee, client, visitor, vendor, intern, trainee or probationer. She has the right to a safe working environment. Hence, the measures that ensure POSH Compliance must be implemented even if the organization has no female employees.
It, therefore, becomes critical for businesses to become POSH compliant that will ensure safe workplaces that are free of sexual harassment and companies from the horrors of workplace sexual harassment claims. This blog lists and elaborates the seven measures an employer must take to be compliant to the POSH Act.
Steps to Ensure POSH Compliance
Formulating a POSH Policy and Treating Sexual Harassment as a Misconduct
The first towards POSH Compliance is the organizational POSH Policy. Every organization must draft and disseminate an organizational policy that announces its stand against sexual harassment in the workplace. Employer must ensure that this policy clearly mentions what is acceptable and what is not in the workplace. The policy can also include the definition of sexual harassment, responsibilities of all employees in sexual harassment prevention at the workplace, complaining mechanism and the penalties for sexual harassment. This policy will clearly mention that the organization treats sexual harassment as a misconduct under the service rules.
Since this policy is to be distributed to all the employees, it should be drafted in simple language that can be understood by anyone even if one does not have a great command over the language or is not a lawyer. Employer should take steps to ensure that all employees are aware of the existence of such a policy in the organization. The policy should also be saved in such a place that it is easy to access.
eLearnPOSH provides Policy Drafting services. For help with drafting and reviewing of your organization’s POSH Policy, contact us.
Constitute Internal Committee (IC)
As per the POSH Act, the grievance redressal team that accepts and handles sexual harassment complaints is called the Internal Committee or IC. If the organization has ten or more employees, the employer must constitute an Internal Committee as prescribed by the POSH Act. The Internal Committee must consist of:
- A Presiding Officer who is a senior female employee
- Two employees (called the Internal Members), preferably, committed to the cause of women or have had experience in social work or have legal knowledge and
- An External Member, who will be a person part of an NGO or an association committed to the cause of women or is familiar about the issues relating to sexual harassment. The External Member must have no other relationship with the organization to ensure the presence of a non-biased third-party in the Internal Committee.
The Internal Committee will accept sexual harassment complaints from the women who faced sexual harassment at workplace and redress them within 90 days as stipulated by the POSH Act.
If you are in search of an External Member for your Internal Committee, you can visit eLearnPOSH’s FREE External Member Directory to find a suitable External Member for your organization. You do not even have to login.
It is necessary for every organization to follow the POSH Act when constituting the Internal Committee as improper constitution can be questioned in the court.
The case of Ruchika Singh Chhabra vs M/S. Air France India and Anr (30 May, 2018) is an example of the court quashing the Inquiry Report prepared by an inappropriately formed Internal Committee. In the said case, the External Member did not possess the required qualifications. As a result, the court set aside the inquiry report and asked the organization to reconstitute the Internal Committee and conduct the inquiry afresh.
Here are a few excerpts from the judgment.
“With regard to the constitution of the ICC, the Appellant has contended that the ICC constituted by the Respondent No. l is in violation of Section 4 (c) of the Workplace Harassment Prohibition Act as no NGO member familiar with the issue of sexual harassment was appointed on the Committee. The external member appointed on the committee is not associated with a non-governmental organization and his qualifications have not been informed to the Appellant. Further, the external member, Mr. Michael Dias was in fact a labour lawyer and had not disclosed that either he or his organization, (i.e. Employers Association) has not been engaged for profit by the Air France before and/or there is no conflict of interest.”
“The objective behind the requirement of a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act is to prevent the possibility of any undue pressure or influence from senior levels as was laid down by the Supreme Court in the case of Vishaka (supra).”
Display POSH Posters
The POSH Act wants the employer to take every measure to improve awareness about sexual harassment at workplace among the employees. One measure it prescribes is to display posters about Prevention of Sexual Harassment (POSH) in conspicuous places of the organization.
The posters can be used to communicate the organization’s commitment against sexual harassment. The POSH posters can also be used to display details about the consequences of committing any offences under the POSH Act. Employer is also responsible to display the order constituting the Internal Committee in conspicuous places.
Arrange Awareness Sessions for Employees and the Internal Committee
The other measure POSH Act prescribes to improve awareness about sexual harassment in the workplace is to conduct regular sensitization and trainings for employees. This training will help employees understand about the important provisions of the Act, the definition of sexual harassment, the complaining and redressal mechanism – the Internal Committee, and their responsibilities in harassment prevention.
For a POSH training to be effective in reducing sexual harassment at workplace, ensure that the training is legally accurate, to avoid legal consequences. For POSH Training needs of your organization, feel free to check our interactive and engaging online POSH training for Employees is available in English and seven regional languages.
POSH Act grants IC the powers similar to that of a Civil Court during the inquiry into a sexual harassment case. As the saying goes “with great power comes great responsibilities”. This immense power granted to the IC must be used carefully to ensure that justice is delivered to all. To ensure that the IC discharges it powers and responsibilities accurately, the employer must provide adequate training in such a manner that the Internal Committee can conduct inquiries effectively staying compliant to the POSH Act. A once-in-a-year POSH training may not be sufficient for the IC. A blended learning approach that is a mixture of discussions and interactions will surely help in enabling the Internal Committee.
eLearnPOSH offers an Annual Subscription Program for Internal Committee Members. This comprehensive enablement program consists of more than 2 hours of eLearning on various important IC related topics along with three webinars on different POSH topics conducted by POSH Experts. The webinars have open Q&A session that allows IC members an opportunity to get their queries answered by the POSH experts.
Provide Assistance for Completion of Inquiry
Providing Assistance to the Internal Committee
As per the POSH Act, the employer must provide all assistance to the Internal Committee for the successful completion of the Inquiry. This includes, but is not limited to:
- Providing assistance in securing the attendance of complainant, respondent and witnesses for every session of the inquiry
- Providing any information available to the IC if requested by them.
Once the inquiry is completed, the IC will submit it findings and recommendations (the action to be taken against the guilty) as an Inquiry Report to the employer. The employer must ensure that the management takes required action as per the recommendations of the Internal Committee.
Providing Assistance to the Local Committee
Let’s understand what a Local Committee is. If an organization does not have ten or more employees, the employer need not constitute an Internal Committee to redress sexual harassment complaints. Instead, there will be a Local Committee (LC) set up in every district. LC will accept complaints of sexual harassment from women employees:
- Who are from organizations with less than ten employees
- If the complaint is against the employer or
- If the employee is working in an unorganized sector, like a domestic help.
Similar to the above-mentioned point, the Employer must provide all support to the Local Committee to complete the inquiry and finally take action according to their recommendations.
Assist the Complainant in Filing a Police Complaint
A woman who faced sexual harassment from an employee of the organization has the right to file a complaint with the Internal Committee and the police simultaneously. Moreover, if the harasser is a third-party, the Internal Committee will not have the jurisdiction to inquire into the complaint or recommend actions. In such cases, the employer should provide support to the aggrieved in filing a complaint with the police.
Annual Report to Disclose the Organization’s POSH Compliance
How does the government track an organization’s POSH compliance? It is through the Annual Report that the companies submit to the District Officer every calendar year. The section 21 of the POSH Act says
“Committee to submit annual report.— (1) The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer.”
To know more about Annual report filing, visit our blog on Annual Report Filing.
eLearnPOSH’s microlearning Annual Report Filing under the POSH Act, which is a part of Prevention of Sexual Harassment – Internal Committee Training eLearning, provides all information required to file Annual Report, including the format of the Report and the covering letter, and the address of the District Officer of prominent cities.
Non-Compliance With the POSH Act Can Be Costly
Non-compliance with the provisions of the POSH Act is strongly discouraged through the penalties described in the POSH Act:
If an employer fails to comply to any provisions of the POSH Act, they will be fined up to 50,000 rupees. If the employer violates the POSH Act for the second time, they may be penalised twice as much as the first time, or their licence, permit, or registration to conduct business or activity may be revoked.
Remember that the court may order the employer to pay compensation to the aggrieved in addition to the above-mentioned penalty. Here are a few examples.
The High Court of Madras ordered an employer to pay an amount of Rupees 1.68 crore as compensation to a woman considering the opportunities that she lost on account of the non-constitution of the Internal Committee.
Reference: Ms.G vs Isg Novasoft Technologies Ltd, 2014
The State Labour Department of Karnataka (Appellate Authority), after hearing an appeal filed by the complainant of a sexual harassment at workplace case, ordered a company in Benagluru to deduct Rs. 50,000 from the respondent’s salary for the next 60 months. Honorable court also ordered the employer to hold back the respondent’s annual salary increment and other monetary benefits for three years. Holding the company responsible for creating an environment conducive for sexual harassment, the court imposed a penalty of Rs. 4,80,000 on the company. The company should pay this amount to the complainant.
In another judgment, the High Court of Judicature at Madras ordered an educational institution to pay Rs. 6,00,000 to a former employee as compensation for sexual harassment and Rs.10 lakhs as compensation for loss of employment.
Reference: Report by Times of India
In December of 2020, Patiala House Court convicted SriLankan Airlines for non-constitution of Internal Complaints Committee.
One can infer from the above judgments that the courts of India take violating the provisions POSH Act seriously. Not complying to the POSH Act can lead to monetary loss and loss of reputation.
POSH Compliance is not only about being on the right side of the law but is also the right thing to do. A respectful workplace that is free of harassment alleviates employee anxieties and discomfort, boosts employee morale and productivity, reduces employee attrition, and saves the businesses and reputation of the organization.