Workplace according to POSH Act

Definitions

How is sexual harassment defined under POSH Act?

According to the POSH Act, any of the following unwelcome behaviors is defined as sexual harassment:

Physical contact and advances.
Demand or request for sexual favors.
Making sexually colored remarks.
Showing pornography.
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

It is also considered sexual harassment if any woman employee is subjected to any of the following:

Promise of preferential treatment in the employment in return of a sexual favor.
Threat of detrimental treatment in the employment for denying a sexual favor.
Threat about the present or future employment status for denying sexual favor.
Any behavior/act with sexual nature that interferes with an employee’s work or creates an intimidating, offensive or hostile work environment.
Any kind of humiliating treatment that relates to any behavior that has explicit or implicit sexual undertones. The kind of treatment that is likely to affect the health or safety of the woman employee.

What is Workplace according to POSH Act?

The POSH Act defines workplace as “any place visited by the employee arising out of or during the course of employment including the transportation facilities provided by the employer”. This includes:

The premises of any establishment owned and run by the government or private parties.
Any place owned by individuals or self-employed workers and engaged in production and sale of good or providing service.
A dwelling place arranged by the employer, like house, hostels and hotel rooms.
Any kind of office sponsored entertainment, like team dinner or outing.
All virtual or online platforms used by employees to connect with each other during or outside work hours and
Any place the employees are at when working remotely.

Is Home Considered Workplace When Working Remotely?

With working from home becoming the new normal due to the Covid impact, Corporate India has seen a shift in the concept of workplace. Since the majority of the workforce started working from home, the boundary between office and home is practically non-existent. Is home considered as a workplace? Yes!

POSH Act recognizes home as workplace because it is a “place visited by the employee arising out of during the course of employment”. This means if employee is subjected to sexual harassment when working from home, her organization is obligated to redress the grievance.

This is significant because there was an increase in sexual harassment cases when people started working remotely. Stalking, sharing of inappropriate images and videos, Zoom bombing, sexist or derogatory WhatsApp messages, pressurizing lady employees to come on video calls are some of the many ways employees were subjected to harassment when working from home.

Courts in India have also made observations emphasizing that home of the employee is covered under workplace when working from home.

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, Delhi High Court held the following:

“It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and the advancement of information technology. A person can interact or do a business conference with another person while sitting in some other country by way of video conferencing. It has also become a trend that the office is being run by CEOs from their residence. In a case like this, if such an officer indulges in an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at ‘workplace’ but at his ‘residence’ and get away with the same.”

Who is an Employer according to POSH Act?

An employer is any person discharging contractual obligations with respect to his or her employees. As per the POSH Act, here are the three definitions of employer:

For a Government or a local authority: An employer for a dwelling place or house is “head of the department, organization, undertaking, establishment, enterprise, institution, office, branch or unit specified by the Government or the appropriate local authority.”
For a dwelling place or house: An employer is the “a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.”
For any other establishment: Employer is any person responsible for the management, supervision and control of the workplace. This includes the person or board or committee responsible for formulation and administration of policies for such organization.

Features

What is the scope of POSH Act?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted as an attempt to ensure a woman’s right to live with dignity and the right to carry out any occupation. The POSH Act provides protection against sexual harassment for every woman who has visited a workplace. That means, a woman can complain if she faces sexual harassment in her workplace or a workplace of another person.

POSH Act is also applicable to every public/private establishment that carries out any commercial, vocational, educational, entertainment, industrial or financial activities in the whole of India. This includes organized and unorganized sector and non-governmental organizations. Yes, the maid who works in your home is protected by the POSH Act.

POSH Act and Gender-Neutrality

Many ask, is the POSH Act gender neutral? The answer is no. As per the POSH Act, only women can file a complaint of sexual harassment. It is to be noted that the POSH Act allows an aggrieved woman to file a sexual harassment complaint against another woman.

In a landmark judgment for the case “Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College”, the Honorable Justice Sabyasachi Bhattacharyya of the High Court of Calcutta remarked:

"There is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act."

“...it might seem a bit odd at the first that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized."

“If section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se“.

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

Local Committee (LC) is a body formulated according to the Section 6 of the POSH Act which states that the District Officer must form the Local Complaints Committee for the respective district.

LC will receive and redress complaints of sexual harassment from:

Employees of organizations that do not have an Internal Committee because the organization has less than ten employees.
Women working in unorganized sector (like housemaids, cooks)
Employees from organization which has an Internal Committee if the sexual harassment complaint is against the employer itself.

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

Constitution of Local Committee

The District Officer will nominate the following members to the Local Committee:

Member	Description
Chairperson	An eminent woman in the field of social work and committed to the cause of women.
Members	A woman working in block, taluka or tehsil or ward or municipality in the district.
Two Members	From NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. One of them should be a woman.
Ex-officio member	The officer dealing with the social welfare or women and child development in the district will be a member of the LC ex officio, or by default.

The District officer will keep the following in mind when constituting the LC:

One of the members should, preferably, have a background in law or legal knowledge.
At least one of the nominees will be a woman belonging to the Scheduled Castes, Scheduled Tribes or the Other Backward Classes or minority community.

Jurisdiction of Local Committee

The jurisdiction of LC extends to the areas of the district where it is constituted.

Remuneration for Local Committee Members

All the Local Committee members are entitled to an allowance for holding the proceedings. The District Officer is responsible for this payment.

Tenure and Disqualification of Local Committee Member

Every LC member will hold the office for a period of three years since the date of their appointment. However, an LC member can be removed from the position before their term if he/she:

Breaches confidentiality regarding information related to the case, such as the details related to the identity of the complainant, witness, or the respondent, information regarding the progress of the investigation, 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.

Complaining Procedure

Who can complain about sexual harassment under POSH Act?

Anybody can become a victim of sexual harassment. As per the POSH Act, any aggrieved woman who is:

An employee
A visitor to the office (example, has come for an interview).
Client or a Vendor
Housekeeping and maintenance staff
Intern
Volunteer
Temporary worker

has the right to file a complaint of sexual harassment with the employer. It is important to note that the aggrieved woman need not be an employee of an organization to file a sexual harassment complaint.

Who is the Complainant?

POSH Act defines the Complainant as the person who filed a written complainant of sexual harassment before the IC/LC. Either the aggrieved woman or any other person who files a complaint on her behalf can be the complainant.

Who is the Respondent?

The person against whom a complaint is filed is called the respondent. The respondent can be an employee of an organization or a third-party.

Lodging A Sexual Harassment Complaint

The complainant should submit a written complaint to the IC/LC.

Can the IC/LC conduct inquiry into anonymous complaints?

The POSH Act does not explicitly say anything about anonymous complaints. This simply means the LC/IC does not have the authority to inquire into anonymous complaints.

Deadline to file a Complaint

The complainant can file a complaint within three months from the incident, or in case of a series of incidents, within three months from the last incident. The IC/LC can use its discretion to extend this timeline to another three months if the reason for delay of filing the complaint is valid.

Can the complainant register a police complaint?

Apart from registering a complaint with the Internal Committee or the Local Committee, POSH Act allows the aggrieved woman to file a police complaint also.

Section 19 (g) of the POSH Act states that the employer must “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;

All you need to know about POSH Act

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