Prevention of Sexual Harassment (POSH) Policy in India

The workplace is an environment where it is imperative to make everyone feel comfortable and safe to ensure the expected work is delivered, while the employees enjoy spending time in the office as well. As there have been numerous cases where women have been mistreated by their colleagues or clients, it is extremely important to ensure it does not happen again with any woman, who comes to office with the expectation that she is at a place where she is safe.

Keeping this in mind, a list of strict guidelines was laid down that aimed to protect women from any form of sexual harassment. Read on to learn more about The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

What is the Prevention of Sexual Harassment (POSH) Act?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the ‘POSH Act’, was passed by the Parliament with an intention to make the workplace safer for women by preventing, prohibiting and redressing acts of sexual harassment at the workplace.

This Act recognises that sexual harassment violates fundamental rights of a women to equality, to live with dignity and practice any profession or occupation which includes a right to safe environment free from sexual harassment.

At a time when there were no guidelines for the safety of women in this regard, the Supreme Court recognized each incident of sexual harassment as a violation of the fundamental right to equality in the case of Vishaka & Ors. vs. State of Rajasthan (AIR 1997 SC 3011). Consequently, a slew of directions were issued by the Supreme Court to prevent sexual harassment of women in India.

POSH Policy Applicability

• The Act is applicable to all companies, workspaces, establishments, and organizations that employ 10 or more employees, irrespective of the industry and whether the employment is part-time, full-time, contract, or internships.
• To adhere to this Act’s provisions, companies must have a policy related to the same, which explains the entire procedure that must be followed in case a sexual harassment complaint is filed by a woman.

How to file a POSH Complaint?

• As per Section 9 of the Act, an aggrieved woman can file a complaint with the Internal Complaints Committee (ICC) or in the absence of an ICC, with a local authority in writing. The section clearly states that the complaint must be in writing for the ICC to conduct an inquiry on it.
• Although it is not stated what to do in case of an anonymous complaint, the company may choose to look into such complaints.
• Anonymous complaints simply show that employees are unwilling to come forward, which makes it the company’s responsibility to create an environment where this does not happen. The company may choose to bring in an external member of the ICC to talk to the employees and gather other important details related to the complaint.

Note: Before any formal inquiry, the policy may have provisions for conciliation. However, the aggrieved woman has the choice to refuse conciliation.

Some vital aspects to keep in mind are:

• If the aggrieved woman refuses conciliation, the respondent must file a response within 10 days along with all the documents and evidence that support his claim.
• As per the POSH Act, complaints must be filed within three months from the date of the incident. This period may be extended by another three months by the Internal Committee for various reasons that must be recorded in writing.
• If the aggrieved woman is incapable of filing a complaint due to mental incapacity, the policy must include as to who may file the complaint on behalf of the aggrieved woman while referring to the POSH Act and the various regulations mentioned thereunder.

What Should the POSH Policy of a Company Cover?

A company’s POSH policy must begin with a statement reaffirming their dedication towards creating a healthy work environment and of their zero tolerance towards any form of sexual harassment of women. It should also include the scope of the policy and the complete extent of its applicability.

The company’s policy must include certain definitions. These definitions must refer to the Act and the definitions mentioned therein. Some terms that must be defined in the policy are:

• Sexual harassment.
• Aggrieved woman – as per the Act, an aggrieved woman can be an employee, customer, client, or even a visitor.
• Complainant.
• Respondent.
• Workplace (any place – including a dwelling place or house – visited by the employee during their employment, including transportation by the employer for undertaking such journey).
• Employee and Employer.

Very recently, the Supreme Court in its order dated 12th May 2023 passed in the matter of Aureliano Fernandes vs State of Goa & Ors [Civil Appeal No. 2482 of 2014] had expressed its displeasure in noting that even after 10 years of passage of the POSH Act, there are serious lapses in the enforcement of the Act. To ensure effective implementation of the Act, the Supreme Court inter alia held that it is imperative to educate the complainant victim about the import and working of the Act. They must be made aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the Complaint Committee is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC etc.

Should The POSH Policy Mandatorily Have Provisions For The LGBTQI+ Community?

The POSH Act by virtue of its various provisions and the definitions mentioned thereunder, makes it evident that the same was enacted to protect only women from sexual harassment at workplace.

The POSH Act is not gender-neutral, meaning thereby that the same does not apply to the members of the LGBTQI+ community.

However, the same does not imply that the companies, while framing their POSH policies, cannot make provisions for its applicability to members of the LGBTQI+ community. The policy may be made in a gender-neutral manner.

But it is to be noted that by virtue of the provisions of the POSH Act, if a company’s POSH policy does not address the issues of sexual harassment of members of LGBTQI+ community at the workplace, then the same would not be considered as a violation of the POSH Act.

Recently, the Supreme Court was concerned with a case (Binu Tamta & Anr. vs. High Court of Delhi & Ors. – MA No. 2308/2023 in W.P. (C) No. 162/2013) where amendments were being sought in the Gender Sensitization and Sexual Harassment of Women at Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, so as to supplant the reference of “aggrieved woman” with “aggrieved persons” to reflect the gender-neutral protection of the Regulations.

The Supreme Court through its order on 7th November 2023, while negating the request, observed that it would be inappropriate to direct the amendments as sought for since the focus would then be lost from the principal objective, i.e., prevention of sexual harassment of women at the Supreme Court of India.

Nonetheless, the Supreme Court granted liberty to the Petitioner to approach the Gender Sensitization Committee of the Supreme Court for formulation of another body of Regulations to cover persons belonging to LGBTQIA+ communities for their protection from sexual harassment in the workplace, i.e., Supreme Court of India.

With the growing awareness and the consequent recognition of the rights of the members of the LGBTQI+ communities, it is imperative that the POSH Act be amended by the Parliament so as to make the same gender-neutral.

Members of Internal Complaints Committee

The members of a company’s internal complaints committee must include the following:

• At least one half of the committee members should be women.
• Presiding officer must be a woman employed at a senior post.
• A minimum of two members from the employees must be dedicated to the cause of women or experienced in social work.
• An external member from any NGO or associations committed towards the welfare of women.

Guidelines for the Process After Receiving a Complaint

Once the committee receives any complaint, they must adhere to the following guidelines:

• Complete confidentiality of the complaint.
• Informing the complainant that witnesses may be called in for questioning, which may result in the disclosure of the complainant’s name.
• Ensuring the victim is not harmed anyhow, anymore.

Procedure upon Failure of Conciliation

Upon the failure of conciliation conducted before a formal inquiry, the procedure that must be followed as per the policy is:

• The policy must state the timelines as per which the Committee will hold the first meeting after a complaint has been filed.
• Listening to the complainant and reviewing any evidence she might have collected.
• Calling the respondent and asking them to submit a reply to the allegations.
• Examination of witnesses, if any and if proposed by either party.
• Providing complete support to the Committee to help complete the inquiry within a specified period.

The committee shall submit their report to the employer within 10 days from the date of conclusion of inquiry.

• The company policy must include provisions for interim reliefs as stated in Section 12 of the POSH Act. The Internal Committee may in the interim recommend to the employer to –
  • Transfer the aggrieved woman or the respondent to any other workplace, or,
  • Grant leave to the aggrieved woman upto a period of 3 months,
  • Restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report,
  • Restrain the respondent, in case of an educational institution, from supervising any academic activity of the aggrieved woman.

It is to be noted that in case any of the aforesaid recommendations are made by the Internal Committee then the Employer has to implement the same.

• The inquiry committee may ask the employer to send the woman or respondent on leave, transfer either of them or take necessary actions as they deem fit.

Action to be taken if Complaint Substantiates

The policy must include the actions that may be taken against the Respondent if the complaint filed is found to be true. As per the POSH Act, the company may:

• Take action as per the norms stated in the policy, if any.
• Deduct payment from Respondent’s salary and pay the same to the Complainant.
• The policy may even include clauses that provide for counselling, written apologies, suspension, termination, or other penalties considered apt and necessary.
• The employer must take necessary action within 60 days of receiving the Committee’s recommendation.

The policy must also include provisions for punishment in case a malicious complaint has been filed against the Respondent.

Furthermore, the policy must include the provision to Appeal by either party, complainant or respondent, if they are not satisfied with the Committee’s decision. The appeal must be made within 90 days from the date of the Committee’s recommendation to the company.

Conclusion

Sexual harassment is a serious offence that not only demoralizes a woman but also endangers her well-being at the workplace. Some points the employer must keep in mind related to POSH policy are:

• The Employer must create an Internal Committee. Failing to do so may lead to a fine, which may go up to INR 50,000.
• The Employer must further act on the recommendations of the Internal Committee failing which fine of up to INR 50,000/- can be imposed on the Employer.
• The POSH policy should be widely publicized and ideally added to the employment contracts to make sure all the employees are aware about it.

Some vital duties of the employer are:

• Create a safe working environment.
• Display the penalties of sexual harassment and contact details of the ICC.
• Coordinate awareness programs to sensitize employees about the issue.
• Help and provide apt facilities to the Internal Committee.
• Assist the aggrieved woman if she decides to initiate action under the provisions of the Indian Penal Code.

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