General FAQs on Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013
Consequent to Vishaka Guidelines, the Supreme Court placed an obligation on workplaces, institutions and those in positions of responsibility, to uphold working women’s fundamental right to equality and dignity at the workplace. Soon after being notified in 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (referred to as Act hereinafter) became the most live topic in the corporate sectors and matter of discussions in the workshops and the seminars.
This question and answer session deals with some of the general FAQs relating to the topic:
1) Whether POSH is applicable in an Organisation with no women also?
Yes, there is no exemption given to any organisation/ entity under the Act. Any organization having more than 10 workers, is required to have a Internal Committee as per the Act.
2) Do we have to form a Committee at all the workplace?
Yes. In the words of Section 4 of the Act, where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
3) How to form a committee where there is no women in the organisation?
For forming a committee, In case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace. Further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation.
4) Whether the Organisation is liable for all the misconduct or harassment happened even after the working hours?
The government had tried to frame a vast picture of this act. Therefore even if the harassment takes place at anywhere among the person somehow connected with the workplace after or before working hours, it would tantamount to sexual harassment at workplace.
5) How to decide whether an act is under the purview of sexual harassment or not?
Definition says: sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:— (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Therefore, the major to elements are UNWELCOMED ACT and SEXUAL NATURE. These two are the litmus test for checking the nature of harassment.
6) What is the Procedure for filling complaint?
A complaint of sexual harassment can be filed within a time limit of 3 months which may be extended to another 3 months if the woman can prove that grave circumstances prevented her from doing the same.
7) What are the major steps to be taken by the employer under this act?
8) What would be the constitution of the committee?
Presiding Officer: Woman+ Senior Level +Amongst Employees
One Member: from NGO for cause of women or familiar to issues relation to SH.
Two Members: amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
Further At least half of the member should be women
9) Whether we need to pay fees to the external member of the committee?
Yes, the Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
10) What would be the tenure of the committee members?
A period, not exceeding three years, from the date of their nomination
11) Can a Company adopt informal mode of Conciliation?
Yes. Referring to Section 10(1) of the Act before initiating an inquiry committee at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made as a basis of conciliation.
12) What if the complaint filed turn out to be malicious?
Committee may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed.
A mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant as false or malicious.
13) What are the consequences of Non Compliances?
He shall be punishable with fine which may extend to fifty thousand rupees.
In case of repetition of offence, (i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence: Provided that in case a higher punishment is prescribed and (ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration for carrying on business activities.
14) What about the confidentiality of Complaint?
The Act prohibits disclosure of the identity and addresses of the parties i.e aggrieved woman, respondent and witnesses. However, information regarding the justice secured to any victim of sexual harassment under this Act without disclosing the identity can be disseminated.
15) What are the quick procedure of redressing the matter?
– Submission of complaint in writing within three months of the incident or last alleged incident in case of chain of incidents
– Planning and preparation of enquiry by the Committee
– Adopting an Informal Mode of resolving as per choice of the aggrieved
– Choosing formal route (in case the aggrieved opts)
– Interviewing the Aggrieved Person, respondent & Witnesses
– Creating a proper records and file of the statements
– Analysing the statements
– Reporting to the Employer with recommendation
16) What as the interim steps the committee can recommend?
On written request of the aggrieved, the committee may recommend the employer to (a) transfer the aggrieved woman or the respondent to any other workplace; or (b) grant leave to the aggrieved woman up to a period of three months; or (c) grant such other relief to the aggrieved woman a may be prescribed.
The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
17) Is there any time limit for submission of final report?
An inquiry must be completed within 90 days and a final report submitted within ten days thereafter. Such report will also be made available to the concerned parties.
The Employer or District Officer is obliged to act on the recommendations within 60 days.
(This article is just an attempt to jot down few basics of the topic. Any suggestion, modifications or alterations are solicited by the esteemed professionals & seniors)