Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 [Act No. 14 of 2013]
Brief Information Bulletin for Employers
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Act No. 14 of 2013] or commonly called the POSH Act was enacted to protect the interests of women at the workplace and to make the workplace safe for women and lays down directives to employers/ government to provide a platform for women to voice their concerns in the event of any untoward incident and for redressal. It is meant to protect the dignity and personal liberty of a woman at the workplace and entities must take it seriously.
Where does the Act apply to?
ALL workplaces in India. The Act protects victims of sexual harassment at the WORKPLACE, so it is necessary that the incident have occurred at workplace, which includes ‘extended workplace’ meaning places outside of the physical place of the Employer wherever authorized employment is being carried out. However, this definition of ‘workplace’ is a grey area, and it will have to be examined on a case-by-case basis. The Act applies individually to every branch/ office of the Employer.
Who does the Act apply to?
ALL entities employing more than 10 persons and the Government as well.
Who is protected under the Act?
All female persons associated with the Employer. This includes part-time or full-time employees, consultants, contract-labourers, female volunteers, interns/ trainees, regardless of their designation/ role in the company and also includes vendors, clients, and customers.
What is sexual harassment?
The Act has a broad definition for what act constitutes as Sexual Harassment, but it rests on the basic principle that all act (physical conduct, spoken words) that is UNWELCOME and UNWANTED received by a woman which creates a hostile environment at the workplace/ place of employment for the woman to work in. Again, since this definition is broad, the behaviour will have to be examined on a case-by-case basis.
What is the role of the Employer?
- Shall provide a safe working environment.
- Shall Organize Workshops and awareness programmes regularly.
- Shall Educate and sensitize the employees to the definition of ‘sexual harassment’.
- Shall establish an Internal Complaints Committee.
- Shall display in the premises information regarding the rules, penalties, constitution of the Internal Complaints Committee.
- Shall organize orientation/ training programmes for the Internal Complaints Committee.
- Shall assist, co-operate, and provide assistance to the Internal Complaints Committee.
- Shall monitor the meetings of the Internal Complaints Committee regarding submission of Report.
- Shall provide assistance to the victim if she chooses to file a complaint under any law.
- Shall provide for treating ‘sexual harassment’ as a misconduct/ violation of employment rules.
- Shall submit an Annual Report.
- Shall implement the Recommendations/ Report of the Internal Complaints Committee
- Create a gender-neutral workplace and provide rules and regulations for safety of women.
- Prepare information bulletins and circulate it regularly.
- Draft and create a POSH Policy.
- May extend the protection against sexual harassment to men as well.
What is the role of the Internal Complaints Committee?
The Internal Complaints Committee (“ICC”) is an independent panel to be set-up by the Employer at every branch/ office/ factory where more than 10 persons are employed. The ICC has to follow the rules and procedures as laid down under the Act.
The role of the ICC is to provide a platform for victims of sexual harassment at the workplace to file their complaints/ grievances and be heard. The ICC must follow the principles of natural justice and provide the complainant as well as the person accused of the offence a fair hearing while maintaining discretion, respecting privacy, and give due regard to the reputation of the persons involved.
Constitution of the ICC:
- 1 Presiding Officer – senior level employee of the Employer
- 2 or more Members – from within the organization or outside, being experienced with social of legal work.
- 1 external member – a lawyer, NGO worker, etc.
- A minimum of 50% of this Committee must comprise of women.
- The term of such ICC is 3 years so the panel must be chosen wisely.
- The Presiding Member + 2 members must be present for conducting any enquiry.
Some tips on choosing an ICC:
- The ICC must comprise of persons who have experience in dealing with such sensitive matters.
- The ICC conducting the enquiry should ideally be odd-number to prevent a split-vote or have a mechanism in place in the event of a split-vote.
- The members of the ICC must undergo regular trainings with regard to the provisions of the POSH Act as well as recent judgments of the Hon’ble High Courts and the Hon’ble Supreme Court is very important.
Powers of the ICC
- Recording the complaint/ statement of the victim
- Accepting the response of the Accused
- Summoning witnesses
- Requiring production of documents
- Any other agenda, as required.
What about non-compliance by the Employer?
There is a monetary penalty under the POSH Act for non-compliance of this mandatory Act.
What about aggrieved women in society at large?
For a victim who perhaps does not have a redressal option (e.g., an employee/ client/ vendor/ customer of an entity not required to comply with the POSH Act), or for a victim associated with the unorganized sector, the Government is required to set up Local Committees which shall perform like an ICC for redressal of the victims.
Firstly, it is advisable for Employers to make efforts to educate, inform and sensitize their employees regarding the law, and the redressal mechanism available for aggrieved women.
Secondly, the Employees’ handbook should ideally include the Employer’s POSH Policy and provide a general understanding of the Act and the role of the internal complaints committee.
Thirdly, the Employer could also prepare an information package with detailed information on filing of complaints, hearings of the ICC, penalties/ punishments for offences proved, and so on to prevent ambiguity. The more detailed the information provided by the employer, the easier it will be for the Employer to prevent such incidents in the workplace, and also provide a safe environment for women at the workplace.
Fourthly, it is advisable for the Employer to be prepared to offer counselling for the victim as well as the accused.
Fifthly, the Employer must respect the privacy and dignity, and maintain discretion in handling such complaints.
It is to be noted that whether there is a complaint or not, the Employer has to keep in place the POSH Policy, the rules and regulations and establish the internal complaints committee at all times. The Employer cannot wait for a complaint to be filed before making provisions for the compliance of the Act.