What is Sexual Harassment in Workplace?
The Act provides a comprehensive definition of sexual harassment, which includes any unwelcome physical, verbal, or non-verbal conduct of a sexual nature. The Prevention of Sexual Harassment (PoSH) Act was enacted in 2013 to address the issue of sexual harassment of women in the workplace.
The Act applies to all workplaces in India, including public and private organizations, government offices, non-governmental organizations, and any place where women work. Sexual harassment in workplace can take various forms. It can involve conduct such as:
- Unwelcome touching, hugging, or kissing
- Staring or leering
- Suggestive comments or jokes
- Unwanted or persistent requests to go out
- Intrusive questions about another person’s private life or body
- Deliberately brushing up against someone
- Insults or taunts of a sexual nature
- Sexually explicit pictures, posters, screen savers, emails, twitters, SMS, or instant messages
- Accessing sexually explicit internet sites
- Inappropriate advances on social networking sites
- Behaviour that would also be an offense under criminal law, such as physical assault indecent exposure sexual assault, stalking, or obscene communications.
Employer Obligation
Employers are required to take preventive measures to ensure a safe working environment. They must establish an Internal Committee (IC) in organizations employing ten or more employees. In the case of smaller organizations, a Local Committee (LC) is to be set up at the district level.
What is Internal Committee (IC)
As per the POSH Act, an employer has 10 workers or more is required to set up an Internal Committee for the redressal of ‘sexual harassment complaints.
An Internal Committee is required to be constituted which shall submit an annual report to its employer and District Officer. Every company needs to have in place an effective IC, or else the company can be penalized for non-constitution of IC.
Initially, when the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 was passed Internal Committee was called ICC (Internal Complaints Committee) but on 9th May 2016, the amendment was made and ICC was substituted by Internal Committee (IC) wherever it existed.
This was done to expand the role of the sexual harassment Committees so that they are not restricted to complaint resolution only.
Internal Committee Members
i) Presiding Officer: The presiding officer must be a woman employed at a senior level in the organization or workplace to work according to the Internal Complaints Committee Policy.
ii) Internal Members: At least 2 Internal Complaints Committee members must be selected from among the employees who are committed to the cause of women or who have had experience in social work or have legal knowledge.
iii) External Member: The external member of the IC has to be selected from non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
iv) 50% Women: At Least one-half of the total members nominated to the IC must be women.
Local Committee (LC)
If an organization does not have ten or more employees, the employer need not constitute an Internal Committee to redress sexual harassment complaints. Instead, there will be a Local Committee (LC) set up in every district. LC will accept complaints of sexual harassment from women employees:
- Who are from organizations with less than ten employees
- If the complaint is against the employer or
- If the employee is working in an unorganized sector, like domestic help.
Similar to the above-mentioned point, the Employer must provide all support to the Local Committee to complete the inquiry and finally take action according to their recommendations.
How to File a Complaint
Any aggrieved woman can make a written complaint of sexual harassment at the workplace to the IC or LC as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
If the organization has workplaces located at different places or divisions or sub-division levels, then IC will be constituted at every workplace.
Inquiry Process
The procedure of inquiry begins when a settlement is not feasible or could not be arrived at through conciliation and the Internal Committee is then bound to conduct an inquiry into the complaint.
- An inquiry may also be initiated if the aggrieved person informs the IC that any terms of the settlement have not been complied with by the respondent.
- The Internal Committee within 7 working days of receiving the complaint shall forward one copy to the respondent and seek a response.
- The respondent shall file his/her reply to the complaint along with a list of supporting documents, names, and addresses of witnesses, within 10 working days of receiving the complaint.
- The complainant or the respondent to the complaint shall not be allowed to bring any legal practitioner to represent them.
- At any stage of the proceedings before the IC, neither the complainant nor the respondent shall be allowed to bring any legal practitioner to represent them.
- The Internal Complaints Committee shall hear both the complainant and the respondent on the date(s) intimated to them in advance and the principles of natural justice will be followed accordingly.
- If the complainant or the respondent fails to attend a personal hearing before the IC on three consecutive dates without sufficient cause, the IC shall have the right to terminate the inquiry proceedings or give an ex-parte decision.
- However, before such termination or the ex-parte order, the IC shall serve a notice in writing to the party/parties, 15 days in advance.
- The process of inquiry shall be completed by the Internal Complaints Committee within 90 days from the date of receipt of the complaint.
- From the date of completion of the inquiry, the IC shall provide a report of its findings and recommendation(s) within 10 days to the concerned authorities as well as the complainant(s) and respondent(s).
What kind of punishment could be awarded under the Act?
- As prescribed under the Service Rules
- In case service rules do not exist
- Disciplinary action including written apology, reprimand, warning, censure
- Withholding of promotion/ pay raise/ increment
- Termination of employment
- Undergo counselling
- Community service
- Deduction from salary for:
- Mental Trauma, pain, suffering, and emotional distress causedMedical expenses incurredThe loss of career opportunity
- The income and financial status of respondent
- If the amount is not paid it can be recovered as arrear of land revenue.
Compliance Under POSH
The registration of POSH includes the formation of Policy and IC every company. The IC comprises 4 members – Presiding Officer, employee members and an external member.
Annual returns need to be filed by the Internal Complaints Committee (in case of more than 10 employees) or the Local Complaints Committee (in case of fewer than 10 employees) stating the company’s POSH compliance, i.e. the number of cases filed; their disposal and investigations etc. each calendar year and submit the same to the District officer under the supervision of the employer.
In cases where the annual report is not required to be filed, the employer is responsible for communicating the total number of harassment cases filed in a year to the District Officer.
Penalty
If the employer fails to comply with the law, he/she is liable to a fine of Rs.50,000. On repeated non-compliance of the law, the employer can be penalised with double the fine amount. Non-compliance can also lead to cancellation of licence, withdrawal or non-renewal of registration for carrying on the business.
However, employers should look at complying with this law, not because of penalties but because sexual harassment-free work environment would lead to better growth of the business.
Exemplary Damages
The employers have had to pay exemplary damages when the aggrieved employee drags the matter to the courts for compensation. The Courts have taken a strict stance against companies, where a female employee approaches the court for cases of sexual harassment.
If the court finds out that the company was not POSH compliant, and that it lacked an Internal Complaints Committee, it may not only impose a penalty but also exemplary damages for non-compliance. In 2016, the Madras High Court directed Chennai-based ISG Novasoft Technologies Ltd to pay Rs 1.68 crore as damages on account of sexual harassment to an aggrieved woman.
Similarly, failure to implement the recommendations of the Internal Committee or the Local Committee or failure to include appropriate details pertaining to filing and disposal of sexual harassment cases carries the same penalty.
Damage to the Reputation
Lacking POSH compliance may also harm the reputation of the company and create a hostile work environment. In an instance where a female employee complains of sexual harassment and it is found that the workplace isn’t POSH compliant, it would turn out to be an unfriendly and unsafe workplace for employees already working due to lack of any safety measures and no redressal mechanism of such complaints.
Moreover, it would become utterly difficult for hiring new people to trust such a workplace and eventually lead to the workplace having a bad reputation.
Disclosure of compliance is mandatory
The Ministry of Corporate Affairs has amended the Companies (Accounts) Rules, 2014 to mandate the disclosure regarding the implementation of the Sexual Harassment of Women at Workplace Act (POSH laws) in the Director’s report of every company.
It has been made mandatory to include a statement in the Director’s report that the company has complied with provisions relating to the constitution of the Internal Complaints Committee (ICC) under POSH laws.