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A brief analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) came into force from December 9, 2013, and is framed to provide protection to women at workplace against sexual harassment. The Act further lays down rules for prevention and redressal of sexual harassment complaints by female workers.  

This article sets out a brief framework of the POSH Act and the rules framed thereunder.  

Every organization, public or private, having more than 10 employees, should be committed to provide a safe and congenial work environment to its employees and ensure that they are not subject to any form of sexual harassment.

Further, every entity should endeavour to create a safe and secure working environment for all persons employed or engaged by them. Every employee should enjoy a working environment which is free from all forms of harassment, including sexual harassment, unlawful discrimination and intimidation.

While the POSH Act has been enacted for the protection of female employees from sexual harassment at the workplace, most of the entities in India have extended policies of sexual harassment to their male employees as well to be gender-neutral. 

Foundation of the Act

The POSH Act has been developed on and around these three foundations:

#1. Sexual harassment at workplaces violates fundamental rights of gender equality and right to life and liberty and right to work with human dignity guaranteed under the Articles 14, 15 and 21 of the Constitution of India.

#2. In addition, failing to protect women against sexual harassment and not able to save their right to work with dignity went against the universally recognized human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on June 25, 1993, by the Government of India. Thus, the POSH Act is an attempt to overcome these shortfalls.

#3. POSH Act is an extension of Vishakha Guidelines, 1997, introduced by the Supreme Court which had laid down guidelines for dealing with sexual harassment of women at the workplace, pending formal legislation.

Definitions

Under the POSH Act, “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication):

(i) If a woman worker suffers physical contact and advances;

(ii) If a demand or request for sexual favours is made on her;

(iii) If sexually coloured remarks are directed towards her;

(iv) If she is shown pornography; or 

(v) If she faces any other unwelcome physical, verbal or non-verbal conduct of sexual nature. 

This is not an exhaustive list as the POSH Act covers a wide-ranging definition of sexual harassment and therefore, in addition to these there are several more circumstances and behaviour which account as ‘sexual harassment’.

 (i) If a female worker faces implied or explicit promise of preferential treatment in her employment; or

(ii) If she receives implied or direct threat of adverse treatment in her employment; or

(iii) If she sees implied or obvious threat about her present or future employment status; or

(iv) If there is an undue interference with her work or circumstances designed to create an intimidating or offensive or hostile work environment for her; or

(v) If she is meted out the humiliating treatment which is likely to affect her health, mental or physical, and/or her safety.

Further, under the POSH Act, the scope of workplace includes any and all units, branches, offices, establishments of any organization, and any place visited by an employee during the course of employment including the transportation provided by such entity for undertaking such journey. 

Internal Complaints Committee

As per the POSH Act, an employer has 10 workers or more are required to set up an internal complaints committee for the redressal of ‘sexual harassment’ complaints at such entity and to regulate and administer complaints on sexual harassment. An Internal Complaints Committee is required to be constituted which shall submit an annual report to its employer and District Officer. 

In the event an entity does not constitute an Internal Complaints Committee due to having less than 10 workers, every District Officer is required to constitute in the district concerned, a committee to be known as the ‘Local Committee’ to receive complaints of sexual harassment from such organizations. In addition, they also take up cases of sexual harassment where the complaint is against the employer himself and domestic workers. 

  • Constitution

The Internal Complaints Committee (ICC) should have a minimum of four members as mentioned under:

(i) The Presiding Officer – who should be a woman employed at a senior level at the workplace;

(ii) Two Internal Members- who should be employees from the workplace who are committed to the case of women or who have had experience in social work or have legal understanding; and 

(iii) One External Member– who is acquainted with the issues relating to sexual harassment and should be from a non-governmental organization or an association committed to the cause of women or a person.

The Local Complaints Committee should have the following members nominated by the District Officer:

(i) The Presiding Officer/ Chairperson – nominated from amongst the eminent women in the field of social work and committed to the cause of women;

(ii) Two Members – nominated from amongst NGOs/ association/ persons committed to the cause of women or familiar with the issues relating to sexual harassment, provided that: (a) at least one must be women, and (b) at least one must have a background of law or legal knowledge;

(iii) One member – nominated from amongst the women working in the block, talk or tehsil or ward or municipality in the district; 

(iv) Ex officio member – the concerned officer dealing with social welfare or women and child development in the district. 

All committees constituted under the POSH Act must have at least 50% representation of women. The Presiding Officer and the other members of the complaints committee are required to hold office for a period of not more than three years from the date of their appointment. 

The list of members and their contact details should be published and displayed at the workplace as well as on the website of the company (if any). It is advisable to display such a list at a prominent place in the workplace.

  • Redressal Process

(i) A complaint of sexual harassment may be lodged by any aggrieved female to the Internal Complaints Committee in writing within three months of the occurrence of the incident and in case of a series of incidents, within three months of the occurrence of the last incident.

The said time limit may be extended by a maximum period of three months with reasons to be recorded in writing by the complaints committee if it is satisfied that there existed circumstances which prevented the aggrieved female from filing the complaint.

(ii) If an aggrieved female is not able to make a complaint due to her being physically or mentally incapacitated, or death or any other reason, then the POSH Act provides that her legal heir or such other person as may be prescribed, may make a complaint.

Furthermore, a supervisor or manager is to report immediately to the ICC if he/she is aware of conduct which is inconsistent with this policy or if he/she receives a report of conduct inconsistent with this policy.

(iii) The complaint should contain all the material and relevant details concerning the alleged sexual harassment including the name of the contravener, details of the incident, place of the incident, names of witness (if any). 

(iv) The Internal Complaints Committee has the power to settle the matter between the aggrieved woman and the contravener through conciliation, at her request. This can be done before initiating an inquiry but the ICC has to make sure that there is no monetary settlement that has been made as a basis of conciliation.

If a settlement is arrived at, the ICC needs to record the details of the settlement and forward it to the management of the concerned organization in order to take action as specified in the recommendation. A copy of the settlement is to be provided to both- the aggrieved woman and the accused.

After a successful settlement has been made between the two parties, no further inquiry shall be conducted by the Internal Complaints Committee unless the terms of the settlement are broken or not followed by either of them. 

  • Inquiry Process 

(i) In the event that the aggrieved woman does not want to proceed with the conciliation process, the ICC will proceed with the inquiry under the POSH Act.

(ii) A copy of the complaint should be sent to the accused within 7 days of receipt of the complaint by the aggrieved woman. The accused is required to file a reply to the complaint along with his list of documents, names and addresses of witnesses within a period of 10 days from the date of receipt of the complaint by the contravener. 

(iii) The aggrieved woman and the accused, during the course of an inquiry by the Internal Complaints Committee, will be given equal opportunity to be heard. The two of them shall be called separately, this has been proposed to not only to ensure the freedom of expression but also to provide an atmosphere free of intimidation. But neither of them will be allowed to be represented by any legal practitioner until the inquiry is conducted by the ICC. 

(iv) The inquiry should be conducted in the presence of at least three members from the ICC. Further, according to the POSH Act, the inquiry proceeding is required to be completed within 90 days from the date of receipt of the complaint, and communicate its findings and its recommendation to the parties and the company within 10 days of completion of the inquiry. 

(v) The report should contain the following elements:

(a) description of all aspects of the complaint;

(b) description of the process followed;

(c) description of the background information and documents that support or refute claims of both the parties;

(d) an analysis of information obtained; 

(e) findings; and

(f) recommendation.

(v) The Internal Complaints Committee has the right to terminate the inquiry proceedings or to give an ex-party decision on the complaint, if either of the parties fails, without sufficient cause, to present themselves for three consecutive hearings convened by the presiding officer. 

(vi) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Complaints Committee may recommend to the employer to:

(a) transfer the aggrieved woman or the accused to any other workplace, or

(b) grant leave to the aggrieved woman up to a period of three months provided that the leave granted to the aggrieved woman shall be in addition to the leave she would have been otherwise entitled.

(vii) The Internal Complaints Committee is free to adopt its own procedure for carrying out the inquiry having regard to the sensitive nature of the complaint and the respective position of the parties. 

  • Disciplinary Action

(i) Upon investigation, if it is found that the complaint is false or filed with malafide intentions, appropriate disciplinary action may be taken against the aggrieved woman.

(ii) Where the Internal Complaints Committee arrives at the conclusion that the allegation against the contravener has been proved, he will be subject to disciplinary action such as:

(a) written apology, warning, reprimand or censure;

(b) withholding of promotion;

(c) withholding of pay rise or increments; 

(d) termination of service;

(e) undergoing a counselling session;

(f) carrying out community service;

(g) any other action specified in the policy relating to the prevention of sexual harassment adopted by the organization.

  • Compensation to be determined on the basis of:

(a) The mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; 

(b) The loss in career opportunity due to the incident of sexual harassment; 

(c) Medical expenses incurred by the victim for physical/ psychiatric treatment; 

(d) The income and status of the alleged perpetrator; and 

(e) Feasibility of such payment in a lump sum or in instalments.

In the event that the respondent fails to pay the aforesaid sum, the Internal Complaints Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned district officer.

  • Appeal

In case the aggrieved woman or the accused is not satisfied with the decision of the ICC or in case of non-implementation of the recommendation of the Internal Complaints Committee, such person may prefer an appeal to the appellate authority notified under Section 2 (a) of the Industrial Employment (Standing Orders) Act, 1946 within ninety (90) days from the date of receipt of a decision of the complaints committee. 

Duties of an Employer

The POSH Act prescribes certain duties of the employer to provide a safe working environment for persons coming in contact with the workplace. Set out below are some of the duties which are required to be performed by the employers:

(i) Formulate an internal anti-sexual harassment policy for prohibition, prevention and redressal of sexual harassment, promote gender-sensitive safe spaces and remove factors that contribute towards a hostile work environment against women;

(ii) Use modules and reports prepared by the State Governments to conduct workshops and awareness programmes for sensitizing the employees with the provisions of the POSH Act;

(iii) Display the penal consequences of sexual harassment through posters, boards, etc. at prominent places in the workplace;

(iv) Maintain a proactive awareness program upon joining and thereafter at regular intervals to educate the employees as to the definition of sexual harassment and procedure for redressal and orientation program for the members of the complaints committee;

(v) Assist in securing the attendance of contravener, and witnesses before the complaints committee;

(vi) Ensure that the aggrieved woman or its witness is not punished by discharging, transferring, dismissing or otherwise for any misconduct, as a consequence of the complaint;

(vii) Provide full assistance to the aggrieved women if she chooses to file a complaint in relation to the offence under Section 509 of the Indian Penal Code or any other law for the time being in force;

(viii) Monitor timely submission of reports by the Internal Complaints Committee;

(ix) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct. 

Annual Report

The Internal Complaints Committee is required to prepare an annual report at the end of the financial year. It is the responsibility of the Presiding Officer to ensure a full account of the committee’s activities during the previous year is recorded and forward a copy thereof, to the employer and/ the district officer. The annual report prepared by the ICC shall have the following details:

(i) number of complaints of sexual harassment received in the year;

(ii) number of complaints disposed of during the year;

(iii) number of cases pending for more than ninety days; 

(iv) number of workshops or awareness programme carried out against sexual harassment;

(v) nature of action taken by the employer or district officer.

Confidentiality

Each organization should acknowledge the sensitivity of the complaint and take steps to ensure that all matters including any complaints made and investigations conducted are handled in the strictest of confidence and sensitivity as confidential to the extent possible or practical under the circumstances. 

However, information may be collected and disclosed regarding any victim of sexual harassment under the POSH Act who has secured justice but without disclosing the name, address, identity or any other particulars which may inadvertently lead to the identification of the complainant and/or the witness/es.

Every employee involved, whether making a complaint or involved in any investigation, shall be required to observe a high level of confidentiality that is required. 

If any person breaches the provisions of confidentiality under the POSH Act, the employer shall recover a sum of INR 5,000 (Indian Rupees Five Thousand) as penalty from such person. 

Penalty for Non-Compliance of the provisions of the POSH Act

Every employer shall be punishable with fine which may extend up to INR 50,000 (Indian Rupees Fifty Thousand) for the following:

(i) employer fails to constitute an Internal Complaints Committee;

(ii) employer fails to take action in relation to the inquiry report, false or malicious complaint and false evidence and reporting the number and details of the complaints; and 

(iii) contravention or attempt to breach the provisions of the POSH Act.

Conclusion

The positive impact of POSH Act as an effective legal recourse for women facing sexual harassment in the workplace is visibly seen in the continuously rising numbers in complaints of such cases every year.

As the cases reported of sexual harassment jumped up almost 54% in 2018 and 14% in 2019, there was a concern on the part of people in general but the industry experts point out that this increase in reportage is a healthy indicator.

It points to a greater awareness among women about legislation on sexual harassment at the workplace as all organizations have implemented the recommendations and provisions described under the POSH Act, 2013.

“Women are more prompt these days to report any case of sexual misconduct and it is the responsibility of organizations to take speedy action,” said Suresh Tripathi, vice president, human resource management, Tata Steel, “Prompt action by organizations will act as a deterrent for others, and it will encourage women to come out and report,” he said, adding, “Increased reporting is good to start with as it means there is more awareness. It (such cases) will plateau and start coming down…”

Way Forward

As the onus of safe campuses lies on the companies and organizations, most of them have started to put in sincere efforts to make the workplace safer for women.

But the sexual harassment of women at the workplace must be seen as a social problem and therefore, all factions of the society must join hands to overcome this problem. 

We need not only to create awareness but also have the obligation to sensitize both genders about its ill-effects on individuals in particular, and society in general.

A healthy workplace shall ensure greater productivity and job satisfaction for all.

By | 2020-07-03T14:17:03+05:30 June 23rd, 2020|PoSH|0 Comments

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