POSH ACT – Sexual Harassment of Women at Workplace

In an attempt to enable a safe working environment for women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Rules (collectively known as POSH Laws) have been enacted and passed by the Ministry of Women and Child Welfare, in the year 2013.

These laws are applicable upon every workplace, establishment, company, and organization, inclusive of MNCs, firms, shops, restaurants, etc.

Applicability:

The Prevention of Sexual Harassment (POSH) at workplace Act is applicable to every workplace, establishment, company or organization employing 10 or more employees (full time, part time, interns or consultants included) irrespective of its location or nature of industry.

Compliance of Posh ACT:

1. Committee: Each organisation with more than 10 employees is required to form an Internal Complaints Committee headed by a “female presiding officer”,

2. Policy: Formulation of an internal POSH policy for the prevention and redressal of sexual harassment at workplaces.

3. Training Programme: Orientation and training programmes are also required to be carried out by the organisation.

4. Annual Report: The organizations are also required to file an annual report with the information of the number of sexual harassment complaints received in a year, the number of complaints disposed of in a year, cases pending for more than 90 days, etc.

Reporting under Directors Report:

The Ministry of Corporate Affairs, through a Notification dated July 31, 2018, amended the Companies (Accounts) Rules 2014, in accordance with the request made by the Ministry of Women and Child Welfare.

By this amendment, it is now mandatory to disclose that the company has implemented the provisions of the Sexual Harassment Act.

It is now compulsory for a company to make a statement in the Director’s Report that it has complied with the provisions regarding the constitution of the Internal Complaints Committee (ICC).

This amendment comes as a major step towards making the workplaces in the private sector safer for women, thereby casting higher responsibility on the Board of Directors to ensure compliance under the POSH Laws. Penal provisions that ensue in case of non-disclosure under Section 134 of the Companies Act will now be levied in the matters of non-disclosure of the implementation of the Sexual Harassment Act as well.

A. Internal Control Committee:

Every employer is obliged to constitute an ICC through a written order. The ICC will be composed of the following members:

B. Sexual Harassment at Workplace Policy

Employers/District Officers are responsible for complying with prohibition, prevention and redress of workplace sexual harassment. In practice, this means having a policy that:

(1) prohibits unwelcome behaviour that constitutes workplace sexual harassment;

(2) champions prevention of workplace sexual harassment through orientation, awareness and sensitization sessions; and

(3) provides a detailed framework for redress.

C. Dissemination of Information and Awareness Generation

Employers/ District Officers have a legal responsibility to:

1. Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment, and provides a detailed framework for prevention, and redress processes.

2. Carry out awareness and orientation for all employees.

3. Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban Local Bodies or like bodies, as appropriate.

4. Ensure capacity and skill building of Complaints Committees.

5. Widely publicize names and contact details of Complaints Committee members.

D. Annual Report:

As per Prevention of Sexual Harassment Act, 2013, there are 2 reports to be submitted by the employer:

1. It is the duty of the ICC to submit an annual report, which includes the number of cases filed/disposed of every calendar year to the employer and district office.

2. The employer has a statutory obligation to ensure this report is included in the annual report of the organization filed to the Registrar of companies.

WHO IS A DISTRICT OFFICER (DO)?

State Governments will notify a District Magistrate/Additional District Magistrate/ Collector/ Deputy Collector as a District Officer at the local level. The District Officer will be responsible for carrying out the powers and functions under the Act at the district levels (including every block, taluka, tehsil, ward, and municipality).

PART-I

Section 21 – Internal Committee to submit annual report:

As per the Act – “(I) The Internal Committee or the Local Committee shall in each calendar year prepare, in such form and when may be prescribed, an annual report and submit the same to the employer and the District Officer.

PART-I

The District Officer will forward a brief report on the annual reports to the appropriate State Government. Such reports must include the following information:

1. No. of complaints received;

2. No. of complaints disposed of;

3. No. of cases pending for more than 90 days;

4. No. of workshops/awareness programmes carried out;

5. Nature of action taken by the employer/DO;

The Report of ICC will be forwarded to the DO through the employer.

Section 22 – Employer to include information in the Annual report

As per the Act – “The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.”

The latest Director’s Report submitted under the Companies Act has a section to capture the compliance to the PoSH Act, 2013. This report is filed along with the Annual returns to the Registrar of companies.

Penalty Provisions:

An employer can be subjected to a penalty of up to INR 50,000 for:

• Failure to constitute Internal Complaints Committee
• Failure to act upon recommendations of the Complaints Committee; or
• Failure to file an annual report to the District Officer where required; or
• Contravening or attempting to contravene or abetting contravention of the Act or Rules.
  Where an employer repeats a breach under the Act, they shall be subject to:
• Twice the punishment or higher punishment if prescribed under any other law for the same offence.
• Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at [email protected])