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Duties Of Employer Under POSH Act 2013
Duties Of Employer Under POSH Act 2013

Introduction

It is important to give employees a secure and pleasant atmosphere where they do not feel threatened or intimidated because they spend more time at work than at home. Numerous things, including workplace discrimination, a hostile work environment, a lack of a code of behaviour, and sexual harassment by coworkers or the company, can make an employee feel uneasy.

The #MeToo movement has dismantled the taboo against sexual harassment and inundated the Indian press with horrifying tales of it occurring to women in various fields, including Bollywood, the media, multinational corporations, and even Indian politics.

Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013, an employer must create a safe workplace for women employees and act quickly to record and address any complaints of sexual harassment at work. Under India’s POSH rules, employers are also held accountable for various additional duties. 

An employer’s responsibilities include these:

  1. The workplace or branch where at least ten employees are employed must have an internal complaints committee (ICC) for a company to do so. Every office or branch of the business with ten or more workers requires the Employer to set up an ICC. Even if there are currently no women working at the institution, an ICC must be established.
  2. Implementing a well-written POSH Policy: The Employer is required to execute a well-written, specifically tailored anti-sexual harassment policy that was created by Indian employment and labour lawyer with expertise. Copying and pasting a policy or using one of the online POSH template policies would not be effective as these policies do not adhere to the guidelines established by the 2013 Prevention of Sexual Harassment Act.
  3. To see sexual harassment as improper behaviour: Any incidence of sexual harassment must be handled as misbehaviour, according to the Anti-Sexual Harassment Act. Sexual harassment must be explicitly defined as misbehaviour in all employment agreements, service rules, policies, and standing orders. The consequences of sexual harassment must also be made very apparent, including salary deductions, job termination, further fines, etc.
  4. The order of the Internal Complaints Committee and the criminal penalties for sexual harassment must be shown by the Employer in a prominent location at the place of employment, respectively.
  5. To educate staff members about workplace sexual harassment: All companies must inform and sensitize workers to the problem of sexual harassment. To educate the workforce on workplace sexual harassment, the companies must provide seminars and hold workshops. 
  6. The following actions are mandated by Central Government regulations under the Sexual Harassment Act on the part of the Employer:
  • Distribute the POSH workplace sexual harassment policy.
  • Conduct orientation programmes for the Internal Complaints Committee’s members.
  • Conduct seminars to help ICC members develop their abilities and skills.
  • Organize seminars and awareness campaigns with women’s organizations, Panchayati raj, local authorities, etc.
  • Include the ICC members’ names and contact information in the Prevention of Sexual Harassment (POSH) Policy.
  1. To prepare the Annual Report: Companies, organizations, and trusts are expected to provide an annual report detailing the sexual harassment claims they have received and where they stand at the time. The Registrar of Companies must receive this yearly report from all Indian corporations; the Charity Commissioner or Registrar of Organizations must get it from all societies and trusts. However, sole proprietorships, partnership businesses, and LLPs must advise the District Officer designated under the POSH Act 2013 of the sexual harassment complaints filed with the organization and their current status rather than submitting this yearly report.
  2. To support the employee in reporting a sexual harassment occurrence, the Employer must also help the employee file a complaint against the alleged harasser and assist her in pursuing legal action, including a criminal sanction. If the female Employer chooses, the Employer may also decide to file a complaint against the alleged offender.

It has been determined that sexual harassment violates constitutional rights such as the right to equality, dignity, and personal liberty. Any organization’s bosses have a critical role in eliminating even the tiniest instances of sexual harassment and guaranteeing a safe environment for female employees. The POSH programme only establishes the minimal requirements for protecting female employees from workplace sexual harassment; the rest is up to the employers to uphold their obligations and prevent women from being encouraged to use the #MeToo hashtag.

Every business with more than ten workers is required under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act of 2013 to establish a sexually harassment-free office that also ensures the safety of visitors to the workplace. The Act outlines the following as employers’ responsibilities for preventing and outlawing occurrences of sexual harassment at work:

#1:Establishing a Specific Sexual Harassment Policy and Disseminating It to All of Its Employees:

Since the Act went into effect, all companies with more than ten workers are required to establish a distinct POSH law (Prevention of Sexual Harassment) policy and to distribute the same to all of their current employees and all new hires as part of their orientation into the firm.

#2: Change Its Service Rules —

To comply with the Act’s requirements, all employers must make specific changes to their current service rules. Several suggested adjustments include:

  • to define the means or actions that may be taken to stop such misconduct, 
  • Define the repercussions of making a false complaint, and 
  • Include sexual harassment as chargeable misbehaviour under the service standards.

#3: Constitute an Internal Committee (IC).

The business must establish an IC at every branch with more than ten employees, not merely at the head or regional office, with a woman serving as its presiding member. The IC should have at least one external member and most female members. Many organizations do not have the external committee members required by the Act on their ICs. This violation puts the IC’s impartiality and objectivity in grave danger and invites accusations of prejudice and injustice about the IC’s members and procedures.

#4: Display the Policy –

The Employer is also obligated to post the separate POSH law policy in visible locations in the workplace, together with information about the repercussions of sexual harassment when it has been developed and distributed to the workforce. Employers must also prominently display the members of the internal committee and the means of communication (email, etc.) for anybody who feels they have been wronged.

#5: Regularly Hold Awareness Sessions –

The Act requires all employers to regularly hold seminars and programmes to make all their staff aware of this. The government has developed suitable POSH training for employees materials that may be used to inform workers. It has provided employers with a list of qualified facilitators and trainers to lead such awareness-raising workshops.

#6: Equipping the IC –

The Employer is responsible for making sure the Internal Committee receives regular training and is made aware of how to handle complaints addressed to it. To educate and upskill the IC members in this respect, the Employer must regularly undertake orientation and capacity development programmes.

#7: Enabling a Fair Investigation –

According to the Act, the Employer must give the IC the tools it needs to handle complaints and conduct investigations. The Employer must provide the IC with any information from its records that the IC may need to undertake an investigation.

#8: Implement IC’s Suggestions –

The Employer must implement the Internal Committee’s suggestion within 60 days after receiving its report. In addition, if the aggrieved decides to file an FIR regarding the offence, the Employer will support her.

#9: Prepare a Detailed Annual Report –

Under the terms of this Act, the IC must submit yearly reports to the relevant authorities and the Employer that contain the following information:

  • the number of complaints received, the complaints that were resolved, the IC’s recommendations in each case, 
  • any cases that have been open for more than 90 days, 
  • the reasons for the delay, any action the Employer took in response to the IC’s recommendations,
  • number of employee and IC awareness seminars held throughout the year

The Employer is Responsible for Ensuring the IC’s Yearly Report is Submitted on Schedule.

Employers will benefit from immunity from unjustified scenarios and safer workplaces if they abide by the Act’s stipulations. The first-time penalty of Rs. 50,000 is assessed for failure to comply with those mentioned earlier. In addition to possible criminal charges being brought against the Employer, the fee might treble, and the company company’s operating license could be revoked for persistent non-compliance.

Under the Act, Who Qualifies as an Employer?

A person in charge of managing, supervising, or controlling a workplace is referred to by the law as an employer. Management includes the person, board, or committee in charge of creating and enforcing the organization’s regulations. Since sexual harassment violates the human dignity of women protected by Articles 14, 15, and 21 of the Constitution, the Employer must take disciplinary action against the offending officer. The investigation must also be fair and reasonable.

Roles of Employers Under POSH ACT 2013

The legislation has established several obligations for the Employer. These obligations start when an employer is required to establish an internal complaints committee to make sure that those who have been wronged can file complaints and seek redress for those complaints. They end when the Employer has included specific information about sexual harassment in its annual report under the law’s requirements. In addition, the legislation stipulates that companies must focus on the “prevention” of sexual harassment and implement specific preventative steps in addition to treating sexual harassment as misbehaviour and taking appropriate disciplinary action.

As a result, the law has established obligations for employers, some of which are listed below:

  1. a) Establish a secure working environment, including protection from other people who may come into touch with you there.
  2. b) Display the internal committee’s composition and the criminal penalties for sexual harassment in any prominent workplace.
  3. c) Arrange seminars, awareness campaigns, and orientation programmes for the members of the Internal Committee regularly to educate staff members on the Act’s requirements. 
  • Create and publicly distribute an internal charter, policy, resolution, or statement for the prohibition, prevention, and redress of  Posh at work to promote gender-sensitive safe spaces and remove underlying causes of a hostile work environment for women.
  • Conduct orientation sessions and seminars for the Internal Committee members.
  • Implement programmes to raise employee awareness, and establish forums for discussion with Gram Sabha, women’s groups, mothers’ committees, teenage groups, urban local bodies, and any other entity deemed essential.
  • POSH training for employees: Conduct training programmes to increase the members of the internal committee’s capability and expertise.
  • Declare each Internal Committee member’s name and contact information.
  • Use the materials created by the State Governments to run training and awareness campaigns to familiarize the staff with the Act’s requirements.
  1. d) Give the Internal Committee the tools to handle the complaint and launch an investigation.
  2. e) Assist in obtaining respondents’ and witnesses’ appearances before the Internal Committee.
  3. f) Provide the Internal Committee with any information it might need about the complaint.
  4. g) Assist the lady in filing a complaint concerning the offence under the Indian Penal Code if she chooses to do so.
  5. h) Justification for bringing legal action under the Indian Penal Code or any other current legislation against the offender, or, if the victimized lady so chooses, against the perpetrator in the workplace where the sexual harassment occurred.
  6. i) Treat sexual harassment as a violation of the service regulations and take appropriate legal action.
  7. j) Inspect the Internal Committee’s timely submission of reports.

In Yamaguchi vs Widnall, [1997] 109 F. 1475, the 9th US Court of Appeals held that an employer is only responsible for a coworker’s sexual harassment if the Employer fails to take appropriate corrective action after being aware of the alleged conduct. These steps must involve quick remedial action to stop the current harassment and prevent further harassment from the same offender or others.

Why Should Employers Comply With the Women Harassment Act?

An annual report must be created by the internal complaints committee established in your company and sent to the district officer and Employer each calendar year. The number of complaints made, how many were resolved, and how many seminars or awareness campaigns the organization ran to combat sexual harassment must all be mentioned in the annual report. 

The organization must maintain a record of this data for the following three reasons:

(1) The number of Women Harassment claims filed and resolved must be disclosed by the Employer each year in the organization’s annual report. If the Employer is exempt from preparing an annual report, he must inform district officer of the number of cases.

(2) The government may request information on Women’s Harassment from any workplace. All employers must participate, and it has the authority to investigate documents and the workplace.

(3) The legislation stipulates that an employer’s failure to comply with the law might result in fines of up to Rs. 50,000 and the revocation of their business license (in case of repeat offence).

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