What Is ICC and Who Are the Members?

ICC or Internal Complaints Committee is a group of people that is mandatory to constituted in every organization with ten or more employees. This committee is provided with the rights equivalent to a court by PoSH Act and is responsible for the investigation and hearing of cases of sexual harassment in any organization. The structure of the ICC is mentioned in the PoSH Act. It consists of-

• A Chairperson/ Presiding Officer – It must be a woman employed at the senior level at the workplace and has a credible record.
• Two Members – Shall be amongst the employees preferably committed to the cause of women/ experience in social work/ have legal knowledge.
• External Member – External member could be a doctor, an Advocate, or from an NGO working for the cause of women. the external member empanelment is also mandatory for each company. the member should be well versed with the provisions of the PoSH act. It is common for corporates to hire a legal expert as an external member in ICC to help the committee over the legal complications of any case. 

The formation of an ICC is a must for all branches of corporates. All organizations must file an annual report of the cases handled throughout the year by ICC to the Ministry of Women and Child Development. Not following these norms could lead to action taken against the organization or even cancellation of their license. 

What Should be an Ideal Complaint Redressal Mechanism?

An ideal PoSH complaint redressal mechanism is a must for any organization for the time-bound disposal of PoSH complaints. The structure should include an easy medium for women to register their complaints. The ICC should maintain confidentiality in such matters during the investigation and hearing of a complaint. the investigation must be unbiased and the point of view of all parties must be considered. ICC should also ensure that the victim gets instant action for their workplace safety. this includes transferring the alleged perpetrator to a different department or branch where the victim won’t have to face the perp till the investigation is complete. A time-cap must be introduced for all complaints to ensure efficient redressal of such cases. 

How PoSH Training Helps?

• Conducting PoSH training of employees helps them to get aware of their rights under the PoSH Act. 
• This helps women to come out and report any sexual misconduct from a college or a senior in the workplace and so, ensures a safe working environment. 
• PoSH Training also enables employees to learn about fake PoSH complaints or what can be categorized as malicious complaints. This can reduce no. of false or fake complaints in the organization. 
• Proper PoSH training for management makes them aware of the process to create a robust and effective complaint redressal system. 
• It also helps the management to set up an internal complaints committee. 

How to Get PoSH Training for Employees

• Contact a Legal firm that has experts with complete knowledge of the PoSH Act and have experience in conducting training sessions for employees in prestigious organizations. 
• These firms mostly have professionals who have worked in the internal complaints committee of other organizations and can help in creating ICC in the new company. 
• The experts can easily make employees understand the most technical terms of the Act clearly with their effective communication skills. 

Conducting PoSH training sessions for employees must be made mandatory so that the employees understand the consequences of sexual misconduct and what acts constitute sexual harassment. This will help in creating a more secure and tension-free environment for women at the workplace. Companies can take help from legal firms to understand the formation of ICC and a well-structured complaint management system. Legal firms can also help companies in becoming PoSH compliant and following all the norms of the PoSH Act. 

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A common misunderstanding among people unaware of the various forms of sexual harassment of women at the workplace is not considering some acts of workplace bullying as sexually malignant. There are forms of workplace bullying that are intended to malign the character of a woman and thus comes under the consideration of the PoSH Act (Prevention of sexual harassment Act).

Workplace bullying has unfortunately become a common phenomenon among many corporates across the world. Humans tend to attach too many emotions to their career and thus everything happening in their corporates lives affect their behaviors. This could drive feelings of jealousy towards a relatively successful colleague or feelings of superiority or inferiority complex among employees depending upon the success in their career. All these complex emotions lead to employees competing with each other and lead to workplace politics with discrimination/bullying. This includes mocking, intimidating, or spreading malicious rumors against a fellow employee for character assassination.

In many cases, this happens to women in the workplace in form of shrewd remarks made by their colleagues or fake rumors about her having a relationship with her superior to gain momentum in her career. All these things tend to give women unnecessary stress and judgment despite them working hard to achieve success. Let’s understand this with a fictional scenario based in a corporate.

Suppose there is a group of men and women working in the software development team of some organization ABC. The team has a male manager who handles and allocates daily tasks for the team and keeps a record of the performance of every employee for annual appraisal. After a year, the manager promotes a female colleague due to her exceptional performance throughout the year. Now, if any other female/male colleague out of respite or jealousy starts spreading a rumor about the promoted woman having an affair with the male manager for the sake of promotion, then it will not only disparage the promoted woman’s hard work and reputation but also demeans the company’s management. This scenario will, of course, make the working environment hostile for the woman due to the rumor-mongering. This rumor-mongering may also lead to mocking behaviors towards that woman which could lead to stress and humiliation for her. 

The above example shows that there is a thin line between common back bitching/rumor-mongering and sexual harassment. Understanding the difference between the two is necessary to ensure that workplace bullying leading to sexual harassment of a victim is not tolerated in the workplace. To understand this an employee must be aware of the differences between mocking or intimidating behavior at the workplace and sexual harassment. The employees must also be aware of what constitutes workplace bullying and are there any options available to them for tackling workplace bullying legally. Let’s try to understand workplace bullying and sexual harassment separately and then understand how they could be related sometimes. This will help employees understand the type of actions they can take to ensure a stress-free working environment for them in the company.

Sexual Harassment of Women At Workplace

Sexual harassment of women at the workplace is a pan India problem. It is present in almost every workplace in some form or another. Not only in India, but the cases of sexual harassment of women are also a major issue in developing countries. This is mainly because women are mostly considered the most vulnerable section of humanity. To change this mindset of discrimination against women and prevent sexual harassment, the Indian government bought PoSH Act 2013. It consisted of strict norms to tackle the issue of workplace harassment and ensure the safety of women in the workplace. It defined what kind of behaviors comes under the scanner of sexual harassment to make both the victims and legal entities aware of what is sexual harassment and the necessary measures to deal with it.

Sexual harassment of women at workplace act includes unwelcome sexual advances, unwanted behavior, verbal or physical misconduct consisting of sexual behavior or remarks. Under section 2(n) of the PoSH Act,

“Sexual harassment includes unwanted sexually charged behavior like:

1. A demand or request for sexual favors;
2. Physical contact and advances;
3. Showing pornography;
4. Sexually colored remarks;
5. Any other physical, verbal or non-verbal conduct that is sexually colored and unwelcomed by the victim.

Sexual harassment of women at the workplace can be easily summed up as gender-based discrimination in the working environment that violates the basic fundamental rights of women conferred by the constitution of India under Articles 14, 15, and 21. Of course, this leads to growth impediments and stressful environments for women in an increasingly competitive scenario where they constantly need to prove their worth compared to men. Health and safety issues or reasonable apprehension humiliation in the working environment is also understood as sexual harassment.  For example, if any gesture of a co-worker created and venomous sexual environment for a female companion then it will be categorized in the workplace sexual harassment.

The scenario of Sexual harassment and PoSH act in India

Bullying is unwanted, unreasonable, and repeated aggressive behavior against any individual due to respite or jealousy. This includes the use of mockery, physical or verbal threat, or dominating behavior to display power over others. The harm of bullying is considered more psychological than physical and has a long-term impact on the mental health of an individual. Now, this coincides with the acts of workplace sexual harassment when the remarks intended for mockery are sexual then they can be punished under the PoSH act. However, not all the acts of workplace bullying are covered under this Act and thus, victims have to understand other legal methods to tackle it.

In our country, where there have been apprehensions among families about their women working outside, most of the cases of sexual misconduct go unreported as women feel that if they report such cases their families won’t allow them to work due to safety concerns. Also, the social stigma and victim-blaming that is prevalent in India lead to women keeping quiet on such cases to avoid facing social humiliation. The landmark case of Vishakah vs the state of Rajasthan changed the situation in India as it was the court’s judgment, in this case, served as the benchmark to define workplace sexual harassment till the PoSH Act was enacted. The Vishakha Guidelines to deal with sexual harassment cases were used extensively by Indian employers till the time the PoSH act came into being.

Understanding Workplace bullying and its Situation in India

Bullying is mostly observed in colleges and schools. In the workplace, the form of bullying is more subtle and involves psychological intimidation through a position on the corporate ladder or prowess at the work. Unwanted criticism, misuse of authority, unnecessary exclusion of an individual, insulting or using foul remarks/rumors to malign someone’s character on their back are the different ways a person can be bullied in the workplace. Here, the bully generally doesn’t realize that they are bullying someone or what effect their behavior is putting on someone’s psychology. And this is why giving proper behavioral training to employees and making them aware of the consequences of workplace bullying could tend to this problem effectively.

Situation in India to tackle Workplace Bullying

In our country, there are no specific laws to punish individuals committing workplace bullying. It is seen as more of a social stigma rather than a criminal offense. However, various issues that come under bullying can be tackled by different sections of the IPC (Indian Penal Code). Like Section 323 – voluntarily causing hurt, Section 340- Wrongful confinement, Section 339 – Wrongful restraint, and section 506- criminal intimidation punishment, can be used to tackle workplace bullying. Because bullying is generally non-sexual and the harassment is more based on religion, age, power dynamics, or jealousy, it can’t be punished under the PoSH act. Although spreading rumors about someone having a sexual affair or disparaging someone’s character based on sexual nature comes directly under the PoSH act and can be punished under it.

What Deterrents Corporate Organisations Need to Apply

1.  Spread Awareness about forms of Workplace Bullying: Most of the time the complainants are not aware of the PoSH laws and the implications of any unwanted behavior that could lead to PoSH complaints. This is where the tool of awareness can come in handy. Employers must create awareness amongst their employees regarding internal complaints committee guidelines, the consequences of bullying an employee through sexually colored remarks, rumors or mockery.  Employees should be properly trained regarding the difference between bullying and acts that fall under the framework of the PoSH act. 

2. PoSH Training Sessions for ICC Members: The POSH Act read with applicable rules clearly specify that the employer must ensure and make provisions for conducting orientation programs and seminars for the members of the ICC. Organizing capacity-building and skill-building programs for the members of the ICC will ensure that there is a well-trained and skilled committee of members in place who are well informed about the subject matter. A well-trained and skilled internal complaints committee shall be able to adjudicate the complaints more efficiently and shall be able to decide on the complaints effectively after considering and analyzing the situation and the facts along with pieces of evidence placed before them. There is no doubt that dealing with workplace sexual harassment complaints is often complex, that is the reason, the POSH Act, itself acknowledges the importance of having a committee in place which possesses critical skills/capacity to effectively carry out their roles.

3.  Use Informal Communication Methods to Resolve Conflicts: Many a time there is a misunderstanding between the parties, and the intent of the accused gets misconstrued differently to the complainant. To prevent such situations, the POSH Act mandatorily requires the ICC to explore the possibility of conciliation between the parties before initiating an inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation, provided the basis for such proceedings are not a monetary settlement.

4. Ensure That the Deterrents Send the Right Massage: Setting a deterrent for false complaints does not imply that the organization is unwilling to take any issue of sexual harassment. Any employee facing sexual harassment should not feel apprehensive of filing complaints because of the deterrent as it will nullify the basic essence of the PoSH Act.

Employees must be encouraged to bring into notice anything undesirable or uncomfortable for them. Employers should have access to all the effective measures that can be taken against sexual harassment and workplace bullying.

Workplace bullying does violate the right of an employee to work with the dignity that has been given by Article 21 of the constitution of India. Furthermore, articles 42 and 43 direct the states to provide healthy and humane working conditions for an employee to work in. This is also part of the PosH Act that seeks to ensure a safe working environment for women in India. Any employee must understand that in our country workplace sexual harassment is a legal offense but there are no such laws yet for workplace bullying. Thus, an individual must understand sexual harassment law to understand what kind of bullying acts comes under the framework of the PoSH act.  This is where taking legal help becomes necessary and PoSH training plays a big role in it. Taking the help of a legal firm, in these cases, would be the ideal way as they understand the various forms of the acts. The professional could make all employees aware of the differences between bullying and sexual harassment. This will help in reducing cases of workplace bullying and sexual harassment and ensure a safe and happy working environment for the employees.

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Do you think all cases of sexual harassment of women at the workplace are true?

Do you think the investigation of all PoSH cases should be conducted without any bias against the accused men?

Why a gender-neutral approach in the investigation is necessary to maintain the right to equality given by our constitution?

In the upcoming sections, we will try to find the answers to such questions related to gender equality’s importance and investigate the current situation of gender equality in the workplace. We will also understand the right to equality given by our constitution.

Every Indian citizen has been imparted right to equality under the constitution that protects the citizens from discrimination and issues related to gender inequality in society. However, even this right could not stop the practice of gender-based discrimination in the workplace as women were always subjected to some or other form of discriminatory practices. Sexual harassment of women in the workplace was another major issue which stopped women from joining the workforce of the country. To protect women from the harassment and unfair treatment at work, PoSH Act, 2013 (Prevention of Sexual Harassment Act) was introduced. Let us understand how it worked to empower women to realise their right to equality and bring the focus on gender equality’s importance and discussion on gender equality in the workplace.

Impact of PoSH Act on Gender Equality in the Workplace

The PoSH law seeks to empower women to fight against sexual harassment at workplace. This law has helped many women get justice over the years for sexual harassment they faced in the workplace. However, it has also become a threatening tool for some women to extort money from their organisation’s management. Fake PoSH cases are increasing day by day and internal complaints committees are finding it hard to decrease the no. of fake or malicious cases as they lead to innocent men facing humiliation from the society.

The constant increase in the malicious PoSH complaint has led some thinkers to believe that in some PoSH act has failed to serve the purpose of building a society free which adheres to the norms of right to equality. Even Delhi High Court said while dismissing a fake sexual harassment case in 2018 that women can’t be treated as “innocent gullible victims” while investigation.

However, most of the experts of the PoSH Act still believe that it is an important law to ensure a safe work environment for women. Although provisions for dealing with false cases should be made stricter, it will be an exaggeration to say that POSH law has failed to bring a positive impact or failed to induce discussion on gender equality’s importance in the society.

#MeToo and #HimToo Movement: Discussion on Right to Equality

#MeToo movement was started in 2017 in Hollywood and by the end of 2018, it gained immense momentum in India. It was a movement where working women were naming and shaming the sexual offenders they had faced in their life on social media. Most of the stories were true, and many offenders (generally high-profile men) did apologise for their behaviour in the public domain. But, like the PoSH act, this movement also gave rise to many false claims coming out on social media just for the sake of personal vendetta against the prominent personality or to gain popularity. The result, movements like #HimToo and #MenToo started running on social media to counter the #MeToo movement and false cases of sexual harassment. The rising fear among men due to these movements and PoSH compliance guidelines had again started the discussion on gender equality’s importance, the right to equality in our constitution, and gender equality in the workplace.

A General bias Against Men and the Shame Culture

The discussion of gender equalities’ importance and right to equality brought into light the society’s bias. The society’s bias against the male in such cases was prominent and somehow even the internal complaints committees of the organisations were also working or investigating cases under this social pressure of statements like “A woman can never lie about such things and if she says so…the guy must have done it.”

The social judgement and the name & shame culture has continued its rise and many innocent males have fallen victim to the humiliation caused by it. Sometimes the humiliation becomes unbearable and people tend to take the extreme decision (Case of suicide by the Genpact Senior Official is an example) under its influence.

What Can be Done?

As we saw in the previous sections that PoSH act and #MeToo movements have bought justice to women who have been wronged but unfortunately, they also led to many false complaints and revelations. Thus, what was supposed to decrease the gender inequality in our society and ensure the right to equality to every citizen has instead increased the gap and trust between the genders. Women are still afraid to speak up due to the fear of judgment from the society and men are afraid of false cases of sexual harassment against them that could label them as a sexual offender.

What we can do is to change our approach to address such cases as a society and being less judgemental about it. It could sound like an ideal scenario, but we must be less judgemental about any women filing a complaint and any men facing the charges. We should step away from making a judgement against any complainant or accused before the final resolution of the complaint. Remember the saying

“Until proven guilty, everyone is innocent in the face of law”.

On the other hand, the government and corporates should work to ensure smooth complaint redressal systems and investigation system so that no women should shy away from filing a complaint if she feels violated. Also, the approach of the investigating team should be non-prejudiced, and they should handle the investigation in a gender-neutral manner to ensure that neither the complainant nor the accused feel any injustice. The organisations should organise PoSH training and PoSH compliance sessions for employees and members of the internal complaints committee. The communication among employees to facilitate gender equality in the workplace should be encouraged so that every employee understands gender equality’s importance and the right to equality.

The post Why a Gender-Neutral Approach is Needed in PoSH Cases to Maintain Right to Equality?? appeared first on MUDS.

The Indian Sexual Harassment Act or POSH Act 2013 is a historical piece of legislation in India and is also known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

Historical Context of Sexual Harassment in India

India being a patriarchal society, faces the dubious distinction of having a very deep-rooted history of sexual harassment in the society.

In old times, the women were mostly confined to the four walls of their homes, not permitted to get educated or work. There were many instances of workplace harassment, yet, the women had to keep quiet and bear the brunt as coming out in the open would tarnish their image.

The perpetrators of such acts were generally not persecuted, as there was no law to protect the sanctity of women.

Background of the POSH Act or Sexual Harassment Law

Gradually the society opened and started giving attention to educating girl child. With time, women started working in all kinds of organizations. The women in India became empowered through education and gained some foothold in the workplaces but ironically, cases of sexual harassment at workplaces were rampant and widespread.

There was a call for a strong sexual harassment law to curb these acts from all sections of the society. Here we shall examine in brief the foundations of the POSH Act, 2013 which was brought as a tool to eradicate harassment of women at workplace.

(a) Vishaka vs State of Rajasthan (1997)

The framework of this women harassment act which was termed as POSH Act was laid down in the landmark judgement by the Supreme Court in Vishaka vs State of Rajasthan (1997). Another case was of Bhanwari Devi.

Bhanwari Devi belonged to a lower caste family and lived in Bhateri, a village in Rajasthan. In 1985, she enrolled as a ‘saathin’ (friend), which is a grassroots worker, as part of the Women’s Development Project (WDP) run by the Government of Rajasthan.

As part of her job, Bhanwari Devi spread awareness amongst villagers about issues related to land, water, literacy, health, etc. In 1992, Bhanwari took up the issue of child marriage which was illegal still widely practiced in villages.

During her campaign against child marriage Bhanwari intervened and tried to stop the marriage of a nine-month-old who was the daughter of one Ram Karan Gurjar. With the help of police and officials she was successful in stopping this marriage on the due date (although it took place the very next day).

This valiant act of Bhanwari did not go down well with men of Gurjar community and she and her family faced social and economic boycott. Not stopping at this, to teach her a lesson, her husband was beaten and even her employer was roughed up. Consequently, she had to quit her work.

However, on 22 September 1992, Bhanwari Devi was brutally gang raped by five men-all belonging to the same Gurjar family whose daughter’s child marriage she had attempted to stop. The accused of men were arrested and tried in the court, but they had a lot of support from police and politicians. It was only when the print media highlighted her plight that women’s groups and other social organizations came forward to take up her case.

Despite all her efforts to get justice, on 15 November 1995, the district and sessions court in Jaipur gave its verdict by dismissing the case and acquitting all the five accused.

Disappointed women activists and lawyers filed a Public Interest Litigation (PIL) in the Supreme Court of India under the collective platform of Vishaka.  The judgment on this PIL in August 1997, for the first time, gave the basic definitions of sexual harassment of women at workplace and provided guidelines to deal with it and this resulted in what are popularly known as the Vishaka Guidelines. The main intention of the SC was to provide a platform for redressal and grievance mechanisms against workplace sexual harassment and this became the basic foundation of the POSH Act, 2013.

(b) UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), July 9, 1993

The POSH Act has taken from this convention, aspects of equality of women in the workplace, gender-specific violence, and unwelcome sexually colored behaviour and adopted them to come out with a strong legislature.

(c) Article 14, 15 & 21 of the Constitution

 The Act is grounded in these specific provisions of the Indian constitution:

• Guarantee of the right to life and liberty (Article 21)
• Right against discrimination (Article 14)
• Freedom to practice any trade or profession without hindrance (Article 19(1)(g))

Thus, drawing from these three major sources, the POSH Act 2013 was framed and came out as a powerful, protective sexual harassment law for working women of all strata.

Brief of “The POSH Act, 2013”

After 16 long years of Vishaka Guidelines, the POSH Act came into force from 9 December 2013.

The Act is a right step to ensure safe working environment for women as it requires all companies (with more than 10 employees) to constitute an Internal Complaints Committee (ICC) in the prescribed manner and to address the workplace sexual harassment complaints from women in a time-bound and confidential manner.

1) Definition of the term “Sexual Harassment”

The Act defines sexual harassment as:

a) Physical contact and advances

b) Demand or request for sexual favors

c) Making sexually colored remarks

d) Showing pornography

e) Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.

Apart from these, the Act also states that the following circumstances may constitute sexual harassment (whether implied or explicit):

a) Promise of preferential treatment in employment

b) Threat of detrimental treatment in employment

c) Threat about present or future employment

d) Creating an intimidating or offensive or hostile work environment

e) Humiliating treatment potentially endangering health or safety

(i) Types of Sexual Harassment

(A) Quid Pro Quo: Means ‘something for something’

       Ex: Promising a promotion in lieu of a sexual favor

(B) Hostile Environment: Involves unwelcome & unwanted conduct

        Ex: Spreading rumors to damage one’s reputation

(ii) What Doesn’t Constitute to Sexual Harassment

• Following-up on work absences
• Requiring performance to job standards
• Normal exercise of management rights
• Working conditions
• Constructive feedback

2) Definition of the term “Unwelcome’’ 

When the recipient does not consent or disapproves

Even if the victim does not complain, it doesn’t imply that it is welcome

Some comments are blatant & rude, inherently offensive: always deemed as unwelcome

It is important to note that as an unwelcome sexual behaviour is a subjective experience and therefore, mostly the legal analysis depends on the complainant’s perspective. In such matters the intent of the doer is unimportant; what matters is the impact on the receiver.

3) Definition of “Workplace”

Interestingly, the Act covers a very wide range for the term workplace and introduces the concept of an “extended workplace.”

The sexual harassment law or PoSH Act explains that apart from the office of the employer or employee, any place that is visited by the employee during the course of his/her employment, will also constitute a workplace and thus will be considered for cases of workplace harassment. It extends beyond this, and includes any transportation provided by the employer for the purpose of commuting to and from the place of employment too. Thus, an official event in a social setting, that is endorsed or financed by the employer, will also be deemed a workplace under the Indian sexual harassment act or the POSH Law.

4) Definition of an “Aggrieved Woman”

The Sexual harassment Law takes a wide view of an “aggrieved woman” and specifies that a woman who has been subjected to sexual harassment may of any age, whether employed or not.

Thus, it is very clear that the woman must not have to be an employee, she can even be a customer or a visitor who feels sexually harassed at any workplace, and therefore, can seek protection under POSH Law.

5) Definition of an “Employee”

In terms of the definition of an “employee” the women harassment act once again encompasses a wide range and covers regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract workers, co-workers, probationers, trainees, and apprentices.

6) Definition of an “Employer”

The women’s harassment act defines an employer to be any person who is responsible for the management, supervision and control of the workplace and management. It also includes a person or board or committee in an organization which is responsible for formulation and administration of policies.

Duties of Employers

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

• Provide a safe working environment
• Display at any conspicuous place at the workplace the penal consequences of workplace sexual harassment and the order constituting the IC
• Conduct PoSH training programs from time to time to create awareness and sensitize employees at all levels
• Conduct orientation programs for the members of the ICC
• Provide necessary facilities to the members of the ICC
• Assist the aggrieved woman to secure justice under the IPC
• Monitor the timely submission of the reports by the IC

Furthermore, an employer must fulfil the following under the Rules:

• Frame and publish policies of the company related to the POSH Law on the internet giving the contact details and names of the ICC members
• Carry out programs for ICC members for capacity building and skills development
• Generate awareness among employees by use modules published by the state governments

As a best practice, since the scope of POSH Law extends beyond employees, the companies must put up POSH Law related posters in conspicuous places in the workplace like the company entrance, reception, and meeting or conference rooms. This will help deliver the message to all- like customers, consultants, etc. who visit the company premises.

Internal Complaints Committee (ICC)

The Internal Committee (IC) (originally called ICC) is the most important component of the POSH Act as on it depends the entire redressal system. Thus, the Act gives a detail of its composition, rules and regulations.

As per the Act, an employer (having 10 workers or more) is required to set up an Internal Committee for the redressal of ‘sexual harassment’ complaints. The organization’s IC shall be entrusted to regulate and administer complaints on harassment at workplace and additionally, it shall submit an annual report to its employer and the concerned District Officer.

(a) Composition of Internal Committee (IC)

The Act mandates that the Internal Committee (IC) should have a minimum of four members as 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 from amongst the employees of the company and 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 POSH Act regulations demand that all committees constituted under it 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 (3) years from the date of their appointment.

The company should publish and display the list of members of IC and their contact details at all prominent spaces of the workplace and on the website of the company (if any).

(b) Redressal Process

(i) A compliant of sexual harassment at workplace may be lodged by any aggrieved female to the Internal Committee in writing within three months of the occurrence of the incident. In case there is a series of incidents, then it should be filed within three months of the occurrence of the last incident.

The three months’ time limit may be extended by the Internal Committee which shall assess if there existed circumstances which prevented the aggrieved female from filing the complaint. If convinced, then an extension for a maximum period of three months shall be given to the aggrieved female for filing the complaint.

(ii) In case 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 IC if he/she is aware of a conduct which is inconsistent with this policy or if he/she receives any report of sexual misconduct.

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

(iv) The Internal Committee has been bestowed with the power to settle the matter between the two parties through conciliation, if the aggrieved woman puts in a request. This route can be opted for before the initiation of an inquiry. And in such a settlement the IC must make sure that no monetary settlement has been made the basis of conciliation.

In case a settlement is arrived at, then the IC must record the details of the settlement and forward it to the management of the concerned organization. A copy of the settlement is to be provided to both- the aggrieved woman and the accused.

The Sexual Harassment law specifies that after a successful settlement has been made between the two parties, there shall be no further inquiry by the Internal Committee unless the terms of the settlement are broken or not followed by either of the two parties.

(c) Inquiry Process

The Act describes in detail the inquiry process to be followed by the IC.

(i) In the event that there is no successful conciliation, the ICC shall 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 complaint by the aggrieved woman. The accused is required to file a reply to the complaint within a period of 10 days from the date of receipt of the complaint.

(iii) The aggrieved woman and the accused, both will be given equal opportunity to be heard, during the course of inquiry by the Internal Committee. To ensure the freedom of expression and also to provide an atmosphere free of intimidation both shall be called separately. But neither of them will be allowed to be represented by any legal practitioner until the inquiry is conducted by the IC.

(iv) Further, according to the POSH Act, 2013 at least three members from the IC must be present during the inquiry.

The inquiry proceedings must be completed within 90 days from the date of receipt of complaint, and the IC must communicate its findings and its recommendation to both the parties and the company within 10 days of the completion of the inquiry.

(v) The report of the case of harassment at workplace should contain of 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.

(vi) The Internal Committee can terminate the inquiry proceedings or to give an ex party decision on the complaint, if either of the parties fail to present themselves for three consecutive hearings.

(vii) During the pendency of an inquiry, on a written request made by the aggrieved woman, the IC 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.

(viii) The Internal 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.

(d) Appeal

In case the aggrieved woman or the accused is not satisfied with the decision of the IC then they may go for an appeal to the appellate authority within ninety days from the date of receipt of decision of the Internal Committee. Either of them can also appeal in case of non-implementation of the recommendation of the IC.

(e) Penalty for Non-Compliance of the sexual harassment Law or PoSH Act

An employer can be subjected to a penalty of up to INR 50,000 for:

• Failure to constitute Internal Complaints Committee
• Failure to act upon recommendations of the Complaints Committee
• Failure to file an annual report to the District Officer where required
• Contravening or attempting to contravene or abetting contravention of the Act or Rules.

Conclusion

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

The enforcement of the POSH Act has brought about great awareness about gender sensitization and sexual harassment and with this more and more women are coming up to complaint against it.

The strict implementation of the women harassment act has increased the level of awareness among employees and is now looked upon as a social responsibility by all to keep their premises safe.

In a recent development the forward-looking entities have started framing sexual harassment laws which cover a wider range than prescribed in the POSH Act and are keeping them gender neutral.

In fact, a safe working place is the fundamental right for all, irrespective of the gender, and by providing this an organization can ensure better productivity and profit.

Thus, to sum up we can state that prevention of sexual harassment must be the primary motive of all organizations, but if unfortunately, an employee’s modesty is outraged, then a fast and effective redressal system must be in place. By saving its workforce from sexual harassment at workplace, the organizations will be able to safeguard their reputation in the market.

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