All you need to know about POSH Act

Compliance to POSH Act

Duties of Employer according to POSH Act

The POSH Act holds the employer responsible for ensuring the safety of all employees. To ensure safety of women within workplaces, the POSH Act makes it mandatory for the employer of an organization or a company to do the following:

• Provide a safe working environment for all women employees
• Draft and disseminate an organizational policy against sexual harassment of women at workplace
• Formulate an Internal Committee if the organization has ten or more employees
• Display the consequences of sexual harassment and the details of Internal Committee in any conspicuous place in the workplace
• Organize awareness programs for employees about the provisions of POSH Act. You can take a look at our POSH Employee Awareness eLearning here. Internal Committee members must be trained on their roles and responsibilities. You can take a look at our POSH for IC Members eLearning here
• Provide necessary facilities and produce any necessary information to the Internal Committee or Local Committee for inquiry of sexual harassment complaints
• Ensure that the complainant and respondent are present during inquiries
• Assist the complainant if she wishes to file a complaint with the police
• Forward an employee’s sexual harassment complaint to the police either because the complainant wishes to, or if the respondent is third-party.
• Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
• Ensure that the IC submits the Annual Report to the management and the District Officer. This applies to only organizations that have ten or more employees.
• If the organization is registered as a company, declare the organization’s POSH Compliance in the Director’s Report.

What constitutes non-compliance to POSH Act?

The employer will be considered non-compliant to the POSH Act if they fail to:

• Formulate a POSH Policy for the organization
• Constitute an Internal Committee
• Create awareness about POSH among the employees
• Take action against the respondent of a sexual harassment case as per the recommendations of the Internal Committee
• Take action against a person for submitting a false complaint of sexual harassment or producing misleading or forged documents
• File an annual report to the District Officer

Penalty for Non-Compliance of POSH Act

In case the employer of an organization violates or attempts to violate any provision under the POSH Act and Rules, a fine of maximum of ₹50,000 will be imposed.

If the employer is convicted for a repeated offence of non-compliance to POSH Act, the penalty will be:

• Twice the punishment that was awarded the first time and/or
• Cancellation or non-renewal of the business license

The penalty can be very severe if the case reaches the court. Let’s look at a couple of examples:

Madhya Pradesh High Court levied a fine of Rs. 50,000 from a hospital for not having an Internal Complaints Committee in 2019. The court also directed the hospital to pay an amount of Rupees 25 lakhs to the complainant for failing to redress her complaint.

Reference: Global Health Pvt. Ltd. vs District Panchayat on 16 September, 2019

In another judgement, the Madras High Court directed a company in Chennai to pay an amount of Rupees 1.68 crore as damages to an aggrieved woman.

Reference: Ms.G vs Isg Novasoft Technologies Ltd, 2014

Formulation of organization’s POSH Policy

One of the mandatory steps for the organization is drafting and disseminating an organizational policy that explains the organization’s stand against sexual harassment. Not having a POSH policy can attract penalty as it is non-compliance to POSH Act.

When drafting an organization’s POSH policy, organizations cannot follow a one-size-fits-all approach as the structure of the organization and their culture vary according to their business domain and industry. However, every organization must take care to include the following in the policy:

• Definition of sexual harassment.
• The message that the organization has a zero-tolerance policy towards any act of sexual harassment.
• Scope and applicability of the policy.
• Complaining mechanism and the contact details of Internal Committee Members.
• Redressal process – formal and informal.
• Rights and the protection provided to the complainant, respondent and witnesses in a sexual harassment case.
• Responsibility of the employer and employees in ensuring safety within the workplace.

When drafting the policy, Employers should make sure that:

• The policy is drafted in a simple language that can be understood by all employees.
• There is no ambiguity and important terms are elaborated.
• The policy is approved by a POSH expert or legal professional.
• It is easy for employees to access the POSH policy.

Can the Organization’s POSH Policy be gender neutral?

Since the POSH Act protects only women against sexual harassment, can the organization’s POSH policy be gender neutral? The answer is yes. Organizations can still have a gender-neutral policy, that allows employee of any gender to file a complaint of sexual harassment with the IC. However, it is to be noted that when there is a sexual harassment complaint from a man or third gender, the powers granted to the Internal Committee will not be applicable. When the Internal Committee handles cases filed by a man or third gender, they can use the powers granted by the organization’s grievance redressal mechanism.

If the organization’s policy is not gender-neutral, the policy can include information about how it handles complaints from other genders. For example, a line that says “Refer to the Code of Conduct policy to know the process of accepting and redressing sexual harassment complaints by other genders” can be included in the policy.

What is Internal Committee or Internal Complaints Committee according to POSH Act?

To redress sexual harassment complaints, organizations that have ten or more employees must formulate a team called the Internal Committee (IC).

Note: Internal Committee was formerly called as the “Internal Complaints Committee”. The name change from Internal Complaints Committee to Internal Committee was brought forward in “THE REPEALING AND AMENDING ACT, 2016”.

The amendment indicates that the IC should not only redress sexual harassment complaints but also take measures to prevent harassment at workplace.

Constitution of Internal Committee

The employer constitutes the IC in writing and nominates the following members to the IC:

At least half of the IC members should be women.

If your organization is looking for an External Member, you can check out our FREE External Member Directory portal.

If you offer External Member services to organizations,you can register in our External Member Directory portal for FREE.

In such case, the member must step down and the employer will fill the vacancy with an individual who possesses the qualification to be in the position.

Registration of IC

Organizations in Telangana and Maharashtra must register their IC with the government.

Telangana Government’s Women and Child Development Department issued a notice that all establishments in the state of Telengana must register their Internal Committee in the department’s portal Shebox.

Similarly, Maharashtra Government’s Women and Child Development Department mandated that all establishments must fill in their details of the IC in the prescribed form and submit it to the Sub-Divisional Magistrate.

External Member is a third-party member of the IC. The External member plays the role of a neutral and impartial person in the IC during inquiries. The External Member should have a good grasp over handling sexual harassment complaints. It is also important that he/she does not have any other relationship with the organization.

Who is an External Member?

The External member performs the following duties:

• Help the organization to be POSH compliant.
• Help in creating awareness of the Act among employees.
• Answer questions from the employees and IC members about the implementation of the POSH Act at workplace.
• Supervise the inquiry proceedings of sexual harassment complaints to ensure that inquiries are objective and follow principles of natural justice.
• Assist the IC members to prepare the minutes of the IC meetings and the inquiry proceedings and
• Assist the IC members to prepare the Annual Report.

Remuneration for External Member

The External Member is entitled to an allowance for holding the proceedings. This can be discussed by the employer and the External Member. The External Member is also allowed to claim for the reimbursement of the travel costs.

Tenure of Internal Committee

All the members of the Internal Committee can hold their positions for three years from the date of their nomination. The employer will reconstitute the IC after the said period.

Disqualification of an Internal Committee Member

An IC member can be disqualified from the position before the completion of three years if he/she:

• Breaches confidentiality regarding information related to the case, like the details related to the identity of the complainant, witness, or the respondent, information regarding the progress of the inquiry, or the recommendation made by or actions taken by IC.
• Is convicted of an offence or an inquiry into the offence is pending.
• Has any pending disciplinary proceedings after found guilty.
• Has abused any powers to continue in their positions in office which could be against the public interest.

In such case, the member must step down and the employer will fill the vacancy with an individual who possesses the qualification to be in the position.

Employee Awareness under POSH Act

POSH Act mandates that employers must create POSH awareness for their employees and employees must be made aware of the provisions of POSH Act. POSH awareness is very important as sexual harassment is a sensitive topic and employees must know what is acceptable and what is not in the workplace. It is important that the following topics are covered in the POSH training:

• Definition of sexual harassment.
• The message that the organization has a zero-tolerance policy towards any act of sexual harassment.
• Scope and applicability of the policy.
• Complaining mechanism and the contact details of Internal Committee Members Redressal process – formal and informal Rights and the protection provided to the complainant, respondent and witnesses in a sexual harassment case.
• Responsibility of the employer and employees in ensuring safety within the workplace.
• Employee and Employer according to POSH Act.
• Internal Committee, its responsibilities and the details of IC members.
• Process for filing a sexual harassment complaint.
• Punishments for sexual harassment.
• Consequences of filing a false complaint.
• Difference between an unsubstantiated complaint and a false complaint.
• Consequences of retaliation.
• Responsibilities of someone who has witnessed harassment.
• Responsibilities of employees in preventing sexual harassment in the organization.
• Twice the punishment that was awarded the first time and/or
• Cancellation or non-renewal of the business license.

Features of an Effective POSH Training

An employer must be careful about the kind of training they choose for employees. “For a training to have a positive impact on the employees and help in preventing sexual harassment at workplace, ”. it must have the following features:

• It should be conducted at regular time intervals. Higher the frequency of training, better the retention.
• The training must include real-life examples and scenarios that are relevant to the industry.
• The training should not only focus on what is unacceptable in the organization. Employees should also be informed about responsible and respectful behavior.
• Managers should also be enabled adequately as most times they will be the first the employees might approach.
• Comprehensive enablement for the IC members with case studies and judgments.

You can check out our comprehensive POSH Awareness Trainings for staff, managers and IC Members, here.

Submission of Annual Report

POSH Act mandates that every organization that has ten or more employees should submit two reports every year:

• The Annual Report submitted by the Internal Committee to the Employer and the District officer.
• Directors’ Report to the ROC (if the organization is a Private Limited or Public Limited Company).

Annual Report submitted by the Internal Committee to the Employer and the District officer

Section 21(1) of the POSH Act states:

The report should contain the following information:

• Number of sexual harassment complaints filed in the year.
• Number of complaints disposed of
• Number of cases pending for resolution for more than ninety days.
• Nature of the action(s) taken by the employer or the district officer and
• Number of workshops/awareness programs conducted by the employer to increase awareness about sexual harassment at workplace.

The POSH Act does not mention a deadline to file the report. However, it is ideal to submit the report for a calendar year by 31st January of the following year. The District Officer will prepare a brief report and forward it to the State Government after receiving reports from organizations and the LC.

Directors’ Report to the ROC

Section 22 of the POSH Act speaks about the employer submitting information in annual report.

This report is the organizational annual report filed by the employer every financial year. If the organization is obligated to file the Directors’ report every year, the employer should include the number of sexual harassment cases filed in a year and their disposal in the report.

In addition to what the POSH Act mandates, the Ministry of Corporate Affairs amended the Companies (Accounts) Rules 2014. The amendment mandates organizations to make a statement in the Director’s Report that the organization is compliant to the POSH Act. This applies to all organizations registered under ROC except small companies and one person companies as defined by Companies Act.

Who is the District Officer?

The POSH Act states that every State Government shall notify a District Magistrate, Additional District Magistrate, Collector or Deputy Collector as the District Officer. The District Officer is responsible to discharge their duties under the Act at the district level. Section 20 of the POSH Act lays down the responsibilities of the District Officer:

District Officer also has the following additional responsibilities:

• Forwarding a brief report on the annual reports submitted by every employer in his/her jurisdiction.
• Formulating a Local Committee in the district.
• Designating a nodal officer for every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area. This nodal officer will receive complaints and forward it to the Local Committee.
• Acting upon the recommendations of the Local Committee after the inquiry of a case.

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