Combating Workplace Harassment: The POSH Act

The object of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) is to provide protection against sexual harassment of women at workplace as well as for the prevention and the redressal for the same. Sexual harassment at workplace violates the fundamental rights of women to equality and their right to live with dignity under the Constitution of India.

What is sexual harassment?

Sexual harassment is an unwelcome act/behaviour namely physical contact/advances; or, a demand/request for sexual favours; or, making sexually coloured remarks; or, showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. These acts can be direct or by implication.

What circumstances amount to sexual harassment?

Interference with a woman’s work, or creating an intimidating/offensive/hostile work environment for her, humiliating treatment affecting her health/safety, promise of preferential treatment in her employment, threat of detrimental treatment in her employment, threat about her present/future employment status, etc., may amount to the circumstances of sexual harassment, which can be implied or explicit.

Who is an aggrieved woman?

A woman at a workplace (may or may not be employed) who alleges to have been subjected to any act of sexual harassment; or a woman who is employed in a dwelling place/house, can be called as an aggrieved woman.

What is a workplace?

A workplace includes an institution supported/influenced by the government; private sector organizations; hospitals/nursing homes; any place visited by the employee arising out of employment; sports complexes; home/dwelling place, etc.

What is the Internal Complaints Committee?

An employer has to set up an internal committee at each office/branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment.

What is a Local Committee?

A Local Committee is formed by the District Officer in each district to handle complaints of sexual harassment from establishments where an Internal Committee has not been set up usually due to less than ten workers or if complaint is against the employer himself. It operates at the district level and receives complaints, especially from rural or tribal areas, through designated nodal officers, who forward the complaints to the concerned Local Committee.

Where will an aggrieved woman make a complaint?

If a woman has been the victim of sexual harassment at work, she can report the incident to the Internal Committee set up at her workplace, or, in the event, there is no Internal Committee, she can report it to the Local Committee, set up by the government. The complaint needs to be submitted within a period of three months from the date of the incident. If the woman herself is unable to make a complaint on her own, her legal heir or representative may do so, on her behalf.

What things should be mentioned in the complaint?

The complaint should be concise and in writing. It should be addressed to the Internal Committee/Local Committee. Details of the incident, date, time, witness, etc. must be included in the complaint. Details of the respondent should be mentioned. False facts must never be included. The same is punishable. The relief that is sought must be clearly mentioned.

What if the complaint cannot be made in writing?

In such a case, the Members of the Internal Committee/Local Committee will render all reasonable assistance to the woman for making the complaint in writing.

Can the parties arrive at a settlement before the inquiry of a complaint?

After receiving the complaint, the Internal Committee or the Local Committee, at the request of the aggrieved women, may first try to settle the matter between the two parties by means of conciliation, before getting into an inquiry. If any settlement takes place, then, the Committee will record the statement of the aggrieved and send it to the employer to act as per its recommendations. However, no monetary settlement can be made as a basis of conciliation. If a settlement is not reached between the two parties, the Committee will inquire into the complaint.

What is the procedure for inquiry?

The Internal Committee or Local Committee conducts an inquiry into the complaint following the service rules applicable. If the respondent is a domestic worker and a prima facie case exists, the Local Committee forwards the complaint to the police for registering a case. If the aggrieved woman reports non-compliance with the settlement terms, an inquiry is conducted or the complaint is forwarded to the police. The Internal Committee or Local Committee has powers akin to a civil court under the Code of Civil Procedure, 1908, including summoning witnesses and documents.

In how much time should the inquiry be completed?

The inquiry has to be completed within 90 days from the receipt of the complaint. The inquiry report has to be issued within 10 days from the date of completion of inquiry. The employer is required to act on the recommendations of the committee within 60 days of receipt of the inquiry report.

What interim measures can the employer provide during inquiry?

At the request of the complainant, the Committee may recommend to the employer to provide interim measures such as transfer of the aggrieved woman or the respondent to any other workplace; granting leave to the aggrieved woman up to a period of 3 months in addition to her entitled leaves, restraining the respondent from reporting on the work performance of the aggrieved woman.

How is compensation determined?

The aggrieved woman’s medical costs, career loss, and emotional distress are all considered when determining compensation. For a well-founded decision, the respondent’s financial situation and capacity to pay are also considered.

Can an appeal be filed against the decision of the committee?

An aggrieved person has 90 days from the date of the recommendations to file an appeal with a court or tribunal. The appeal must be filed in line with any applicable service rules.

Are the proceedings under the POSH Act confidential?

Yes, the contents of the complaint and the inquiry proceedings have to be kept confidential at all times.

What is SHe-Box?

The Ministry of Women and Child Development has developed an online complaint management system titled, “Sexual Harassment electronic–Box (SHe-Box)” for registering complaints related to sexual harassment at the workplace by women, including government and private employees.

What are the penalties for the non-compliance of the POSH Act?

If an employer fails to constitute an Internal Committee or does not comply with the requirements prescribed under the POSH Act, a monetary penalty of up to INR 50,000/- may be imposed.

What is the Vishaka Judgment?

Sexual harassment at workplace was recognized by the Supreme Court for the first time in Vishaka v. State of Rajasthan, in the year 1997, wherein some guidelines were framed and directions were issued to the Union of India to enact a law for preventing workplace sexual harassment.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.