POSH Law

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which became effective from December 9, 2013 is an act passed by the Government of India with an aim to make safe workplace a woman’s legal right and all forms of sexual harassment at workplace, ‘’illegal.” The Act explains various ways in which a woman can be harassed in the workplace, the means to file complaints against such behaviours and the penalties for the crime.

Surveys suggest that more than one third of women face some form of sexual harassment at workplace and refrain from complaining because of the fear of retaliation, embarrassment or being terminated from work. Sexual harassment creates unsafe and hostile environment in the workplace for women and affects the morale of the employees. Sexual harassment is a clear form of discrimination and should not be tolerated at any cost.

According to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, the following are considered to be sexual harassment:

(1) Physical contact and advances
(2) Demand or request for sexual favours
(3) Making sexually coloured remarks
(4) Showing pornography
(5) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Additionally, any of the following circumstances also amount to sexual harassment:

(1) Implied or explicit promise of preferential treatment in the victim’s employment
(2) Implied or explicit threat of detrimental treatment in the victim’s employment
(3) Implied or explicit threat about the victim’s present or future employment status
(4) Interferes with the victim’s work or creating an intimidating or offensive or hostile work environment for her and
(5) Humiliating treatment likely to affect the victim’s health or safety The above point makes it clear that it is not the intent of the doer, rather the impact on the receiver that will be counted.

The Act gives a clear definition of what falls under workplace: Any ‘’private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey)’’ can be counted as workplace.

The Act gives a clear definition of what falls under workplace: Any ‘’private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey)’’ can be counted as workplace.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates that any organization with more than 10 employees should implement a few steps to be POSH complaint. They are:
● Every organization should draft a policy against sexual harassment and communicate it to the employeesb
● Change Employment Contract to reflect organization’s POSH Policy
● Constitute an Internal Committee (IC) to address and redress the complaints related to sexual harassment
● Appoint an external member who has legal experience/knowledge in the space of women safety in the internal committee
● Train the employees and managers on their rights, duties and responsibilities in order to prevent any form of sexual harassment in the organization
● Investigate each complaint without prejudice
● Assist the IC in investigating the complaint and assist the complainant if she chooses to take the case to the court and
● Submit Annual Report with the details about the number of cases filed under the Act and the actions taken

An organization that has less than 10 employees need not form an IC. For such organizations, the sexual harassment complaints will be sent to the Local Complaints Committee in their district. The POSH Act mandates that Local Complaints Committee should be constituted by the District Officers of each district. The employer can also approach the Local Complaints Committee to file the sexual harassment complaint directly.

● Any organization with more than 10 employees should constitute an IC which will be the jury to handle any complaints related to sexual harassment.
● If there are more than one office premises or administrative units of the workplace located at different places, the IC should be constituted at all administrative units or offices.
● The IC should have a minimum of four members and fifty percent of the member should be females. The IC will be headed by a presiding officer who must be a senior female member of the organization.Additionally, it should have an external member who has legal knowledge or has worked in the domain of women’s right.
If the complaint is against the employer, the case will be handled by the Local Complaints Committee (LCC). The employer is responsible for empowering the IC members with adequate knowledge about the duties and responsibilities to handle sexual harassment complaint. The names and contact details of the IC members should be publicly announced. If the complaint is against the employer, the case will be handled by the Local Complaints Committee (LCC). The employer is responsible for empowering the IC members with adequate knowledge about the duties and responsibilities to handle sexual harassment complaint. The names and contact details of the IC members should be publicly announced.
Order to be passed in writing for constituting IC
To constitute an Internal Committee, the Employer must pass an order in writing. For example, if the organization is a private limited company, the order in writing for the constitution of an Internal Committee should be passed as a Board Resolution.
Sample Text for constitution of Internal Committee
RESOLVED THAT as per the provisions of Section 4 of Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013, we hereby constitute the Internal Committee for our organization.
RESOLVED FURTHER THAT XXXX (Designation of the employee) shall be the Presiding Officer of the Committee.
RESOLVED FURTHER THAT ABCD (Designation of the employee) and MNOP (Designation of the employee) shall be the Internal Members.
RESOLVED FURTHER THAT RXOP (Occupation) shall be the External Member.
RESOLVED FURTHER THAT the Internal Committee members are hereby authorized to do the following:
●To draft the Sexual Harassment Policy for our organization
●To work towards providing a safe and respectful working environment
●Organize training and awareness programs (classroom / eLearning) at regular intervals
●To conduct meetings:
  ○When there is a complaint received in writing from any of the women employees,
  ○To settle grievances and
  ○To make sure there is appropriate compensation for any case of misconduct and   sexual harassment
RESOLVED FURTHER THAT XXXXX, (Designation of the employee) is hereby authorized to do the following:
●Submission of application and other relevant documents to the concerned authorities / departments
●Declaration filing as required
●Authentication of documents related to the POSH Act
●Representation of the Company in connection to the issues related to the POSH Act
●Returns Filing as per the POSH Act

The term for the IC members will be three years unless a member is disqualified for valid reasons.

In principle, External Member ensures that the activities of the Internal Committee are unbiased and uninfluenced, thus providing neutrality and transparency in the Complaints handling and inquiry process. Here is a brief list of some of the roles that an External Member in the Internal Committee may perform.
1. The External Member plays a key role in keeping the implementation of POSH policy free from bias and partiality.
2. Active involvement in formulating and reviewing the organization’s POSH policy.
3. Impartial role in handling and supervision of complaints related to Sexual Harassment.
4. Professional advice to the organisation on implementation of POSH policy (whenever required).
5. Participating in regular meetings with the IC members to ensure complete and proper implementation of the POSH policy.
6. Drafting the Minutes of Meeting for IC meetings (if required).
7. Contribution to Annual Report preparation.

Yes, a person can act as an External Member for more than one organisation.

No, it is not mandatory to have the External Member from the same city. However, it is recommended to have the External Member from the same city as coordination and involvement becomes easier.

The External Member is entitled for an allowance paid by the employer. The External Member is also allowed to claim for the reimbursement of the travel costs.

According to the POSH law, an IC member will be disqualified when:
●The person discloses matters that are deemed confidential by the POSH law like information regarding the harassment complaints, identity of the complainant, the respondent or witnesses, details of inquiry proceedings and recommendations of the IC, or action taken by the employer.
●The person is convicted, or an inquiry is pending against the person, of any offence under any law.
●The person is going through disciplinary proceedings for any of his actions at the workplace.
●The person has abused their position as an IC member in any form
When any of the four criteria applies, there will be disqualification of the IC member and should therefore step down. The organization has now the obligation to appoint a suitable person as replacement.

Section 22 of the POSH Act 2013 states that “The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.” Apart from the organization details like name, registration number and address, the annual report will contain the following:
● Total number of sexual harassment complaints received.
● Total number of sexual harassment complaints actioned and completed.
● Total number of sexual harassment complaints under investigation for more than 90 days.
● Total number of employees in the organisation and the number of employees trained on POSH awareness.
● Nature of the action taken by the Organization or District Officer.

An aggrieved woman can file a complaint to the IC within three months from the date of incident. For certain special instances, she can file the complaint six months from the date of incident.
IC will hear both the parties, conduct investigation and complete the inquiry in 90 days. No monetary settlement is allowed. Post the inquiry, IC should submit a report with recommendations which should be acted upon within 60 days.
The IC should submit an annual report to the organization with details of the sexual harassment cases. This report should be included in the organization’s annual report.

Here are a few recommendations IC can make to the employer as relief to the victim:
●Transfer the victim to a different location.
●Transfer the respondent to a different location.
●Grant leave for up to 3 months to the victim on a written request.
Additionally, during the trial of the case, IC can restrain the respondent from ‘’reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer.’’

In 2019, the Indore Bench of the Madhya Pradesh High Court has fined a penalty of INR 50,000.00 on a hospital in Indore for not forming an Internal Committee as per the Act. The court has also ordered the hospital to pay a compensation of INR 25 Lakhs to the complainant for not acknowledging her complaint and terminating her from the service. (Times of India, Sep 17, 2019). In 2015, Madras High Court had directed a company in Chennai to pay INR 1.68 crore as damages for sexual harassment to an aggrieved woman. (Economic Times, April 11, 2015)

According to the Act, an employer failing to implement any of the steps can attract:
1) Penalty extending up to Rs. 50,000.
2) Double penalty in cases of repeat offences.
3) Cancellation or non-renewal of business license.
Additionally, there have been instances in which the court ordered organizations to pay compensation of lakhs to the grieved.

Yes. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates that the employers should train the employees and managers on their rights, duties and responsibilities to prevent any form of sexual harassment in the organization.

Since sexual harassment is a sensitive topic, employees generally have many questions regarding sexual harassment. Many employees are unaware of the legalities and their rights and responsibilities. For example: Not many employees have clarity on what is considered inappropriate behaviour and what constitutes sexual harassment. Providing training on prevention of sexual harassment will not only create awareness about the law among the employees but will also show that the organization is strongly committed towards providing a discrimination-free safe workplace.

Yes, it is strongly recommended that the managers are trained on POSH as they play a significant role in POSH policy implementation in the organization. Since the managers play a key support role during the entire complaint process, it is very important that they are sensitized about POSH law.

Yes, surveys conducted on this subject reveal that many internal committee members are not adequately trained to effectively handle sexual harassment complaints. A few years ago, an employee of an MNC who was accused of sexual harassment, committed suicide. This incident shows that irrespective of how big the organization is, handling sexual harassment related complaints comes with its own challenges and therefore, it is very important that the Internal Committee members are trained on POSH Law and complaint handling process.

POSH training has the following benefits:
● Employees feel much safer after receiving POSH training.
● Potential offenders are likely to restrain from committing crimes after getting to know the consequences.
● Organizations that exhibit concern for employees’ welfare have high customer confidence.
● POSH training improves the job satisfaction and employee morale.

Employers can create awareness among the employees in different ways. Organizations use classroom awareness sessions and online training on POSH.

Though classroom trainings have been employed in the best, of late many organizations use Online training for POSH awareness. POSH online trainings are not only simple but also effective because of the following reasons:
● Cost-Effective
  Online POSH training can be very cost-effective when compared to traditional classroom sessions as they involve a one-time cost with annual or bi-annual contract. The online training is purchased once but can be used as many times as the organization desires.
● Better Learner Comprehension and Retention
An interactive and engaging course with a legally accurate content explained through practical scenarios, will enhance the learners’ comprehension and retention.
● POSH training can be delivered in regional languages
The POSH online courses can also be delivered in regional languages like Hindi, Marathi, Kannada, Telugu etc to cater to learners who are not comfortable with English. This will ensure that every learner regardless of their education background or command over a language will be thoroughly trained on this subject.
● Online POSH trainings allow privacy to learners Considering that sexual harassment is a sensitive topic, the employees would feel more comfortable learning the topic online, because it allows them the privacy they need.
● Simpler Tracking and Reporting for POSH Compliance
With POSH online trainings, tracking the training progress and reporting of employee compliance becomes extremely simpler and easier.
● Distributed workforce
A person who works remotely, can complete the online training at his own time and pace without any difficulty.
● Employee Churn
Whenever new employees join your organization (even if it is a single employee), they can be trained through the online programs, without any delay.