Q 1. WHAT IS POSH?
Sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
“An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”
Q 2. WHAT AMOUNTS TO SEXUAL HARASSMENT?
“Sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:-
(i) physical contact and advances,
(ii) demand or request for sexual favors,
(iii) making sexually colored remarks,
(iv) showing pornography, or
(v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
NOTE-: Implied behavior will depend only upon the interpretation of a person. The definition also provides that harassment may be a verbal or non-verbal conduct. Hence, a mere statement in a case where the plaintiff requested defendant No. 1 to instruct the attendants to switch off the A. C. Machine, but in reply defendant No. 1 said “… come close to me, you will start feeling hot“, can also be construed to be sexual harassment (Albert Davit Limited vs. Anuradha Chowdhury and Ors., (2004) 2 CALLT 421 (HC)).
Q 3. WHAT IS POSH AT WORK?
If harassment takes place even during transportation or during a lunch meeting at a restaurant, the same will be covered under the Act.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the respondent contended that he could not be accused of sexual harassment at workplace as the alleged misconduct took place not at the workplace but at an official mess where the woman officer was residing. To this court held that a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office”.
The following factors would have bearing on determining whether the act has occurred in the ‘workplace’:
In conclusion, the Delhi High Court held that the official mess where the employee was alleged to have been sexually harassed definitely falls under ‘workplace’.
As per the POSH Act 2013, Workplace includes-
1. any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
2. any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service
3. hospitals or nursing homes.
4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto.
5. any place visited by the employee arising out of or during employment including transportation by the employer for undertaking such a journey
6. a dwelling place or a house;
Q 4. What are the applicable laws need to comply by the corporates under POSH?
POSH Act has to be complied with by every employer having more than 10 employees in the organized as well as unorganized sector.
|S.No.||Activity||Timelines||Actions to be taken|
|1.||Creating a Anti Sexual Harassment Policy for the organization||Immediate||The policy that is specific to the organization can be created with the help of experts in the field|
|2.||Constitution of an Internal Complaints Committee||Immediate||Every employer, with more than 10 employees, shall constitute an ‘Internal Complaints Committee’ at the workplace and wherein the offices or administrative units of workplace are located at different places, he will, constitute a committee in all such offices and administrative units.
The ICC needs to have an external representation from an NGO or a Lawyer or a person having knowledge and experience in such areas.
|3.||Annual Report sent by the IC to the employer and District Officer containing details of the sexual harassment proceedings||Annually (for each calendar year)||The act casts a duty on employers to include information pertaining to the number of cases filed and disposed of by them in their Annual Report. Organisations which are not under a requirement to prepare an Annual Report have to furnish this information directly to the Local Complaints Committee, which will prepare an Annual Report of its own to be forwarded to the appropriate government.|
|4.||Sexual harassment must be recognized as a form of misconduct in the organization||Immediate||Incorporation in the employment contracts/ HR policy/ Sexual harassment policy.|
|5.||Issue certificate from the employees to evidence compliance||Periodic||The certificate should be in the form of a declaration that states the employee has not experienced any incident of sexual harassment in the organization.|
|6.||Display of posters/ notices in prominent places in the premises of the organization informing employees about zero-tolerance towards sexual harassment||Immediate||Posters with graphics can be prepared. The posters must also contain the information of the members of the IC.|
|7.||Sensitization workshops and seminars must be organized to inform the employees about their rights||Periodic||The format in which the workshops/ seminars can be decided by the organization|
|8.||Capacity-building programmes for the members of IC||Periodic||Training should be given to members of IC for conducting sexual harassment proceedings|
|9.||Informing new joinees about the zero-tolerance policy towards sexual harassment||As needed||The new joinees in the organization should be given sufficient training and information on what constitutes sexual harassment|
|10.||Prohibition from using the information technology assets for indulging in sexual harassment||Immediate||In the changed circumstances due to the pandemic a lot of organizations are working from home. The trend might even continue in the longer run. Therefore, sufficient modifications/ additions should be made in the new and existing PoSH policies to incorporate situations to cover instances of sexual harassment via IT|
|11.||Monitoring the performance and functioning of the IC||Periodic||Necessary knowledge is to be imparted including information as to amendments and judgments on the law|
|12.||Assistance to be given to the aggrieved employee to initiate criminal complaint in the police station||As needed||Guidance to be given to employee as to how to proceed with the filing of an FIR|
|13.||Implementation of gender-neutral policies to afford adequate protection to male employees as well||Optional||Guides for male and transgender employees and formulation of gender-neutral versions of the sexual harassment policy|
|14.||PoSH policy should be made applicable to all the offices including the main branch of the organization||Immediate||Sufficient knowledge between branches of the organization should be ensured to guarantee compliance at all levels|
Q 5. What kind of policy should be implemented in order to comply with the provision mentioned in the POSH?
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.
Manner of taking action for sexual harassment.–
Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service.
Manner to organize workshops, etc.
Subject to the provisions of Section 19, every employer shall
1. Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women;
2. Carry out orientation programmes and seminars for the Members of the Internal Committee;
3. Carry out employee’s awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act.
Preparation of annual report. –
The annual report which the Complaints Committee shall prepare under Section 21, shall have the following details. –
1. number of complaints of sexual harassment received in the year;
2. number of complaints disposed off during the year;
3. number of cases pending for more than ninety days;
4. number of workshops or awareness programme against sexual harassment carried out;
5. nature of action taken by the employer or District Officer be considered necessary; d. conduct capacity building and skill building programmes for the Members of the Internal Committee;
6. declares the names and contact details of all the Members of the Internal Committee;
|DISCLOSURE REQUIREMENTS UNDER THE ANNUAL REPORT OF COMPANIES|
|The Sexual Harassment of Women at the Workplace (Prevention, Prohibition & Redressal) Act, 2013 mandates that all companies need to make necessary disclosure about compliance with the said law in their Annual Report as per section 22 and 28 of the Act as follows:
(i) Employer to include information in Annual Report (Section 22): 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 organization or where no such report is required to be prepared, intimate such number of cases if any, to the District Officer.
(ii) Act not in derogation of any other law (Section 28): The provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Accordingly companies would need to incorporate the said information in their Annual Report to be filed with Registrar of Companies for the year ending 31st march, 2015. The disclosure can be made as follows:
Disclosure under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
“The Company has in place an anti -sexual harassment policy in line with the requirements of The Sexual Harassment of Women at the Workplace (Prevention, Prohibition & Redressal) Act, 2013. Internal Complaints Committee (ICC) has been set up to redress complaints received regarding sexual harassment. All employees (permanent, contractual, temporary, trainees) are covered under this policy.
The following is a summary of sexual harassment complaints received and disposed off during each Calendar year:
Q 6. How is the IC required to be constituted in the POSH?
1. Mandatory constitution of Internal Complaints Committee by order in writing
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.
2. Composition of the ICC
|PRESIDING OFFICER||Woman employed at a senior level at the workplace from amongst the employees.
Provided that 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 referred to in sub-section (l):
Provided 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;
|MEMBERS||Not less than 2 members from amongst employees.
Preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
|EXTERNAL MEMBER||From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.
They shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
In Vidya Akhave (“Petitioner”) v. Union of India and Ors, Writ Petition 796 of 2015, The Bombay High Court (“Court”) ruled that it would not interfere with an order of punishment passed by the Internal Complaints Committee (“ICC”) in relation to a sexual harassment complaint, unless the order is shockingly disproportionate.
Q 7. Is it mandatory to have a POSH training certification if an entity/professional wants to provide POSH training service to an entity?
No Certification is required by or under SHWW (P,P &R) Act 2013 and the SHWW (P,P&R) rules framed thereunder and gazetted on 9.12.2013.
Q 8. What kind of training is covered under POSH and who can provide such provide such training?
The Ministry of Women & Child Development has some Names & Particulars of Few Agencies claiming they Possess Competencies to Provide Services in Sexual Harassment of Woman at Workplace Domain.
To ensure safety and security of women at all workplaces, WCD is empanelling institutions/organisations willing to conduct awareness raising exercises around the provisions of the SH Act.
In the first round, 29 institutes/organisations were selected and empanelled vide notification dated 16th February 2017 (the list could be viewed in the Resource Section). Recently, to widen the outreach of the organisations/institutes working in various parts of the country, WCD has invited fresh proposals from the organisations, both public and private, conducting training programs/workshops on SH Act through an advertisement dated 31.08.2017 published both in Hindi and English daily newspapers in a requisite proforma. Out of the huge number which applied, 112 are selected (both from new and old notification)
Q9. What all should be covered under the POSH policy?
Q 10. What are the penalties for non-compliance with POSH?
Penalty for non-compliance with provisions of Act.
Section 26 provides for a penalty with a fine up to rupees fifty thousand where the employer fails to-
1. constitute an Internal Committee under sub-section (1) of section 4;
2. take action under sections 13, 14 and 22; and
3. contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made there under.
If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to 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 under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
In addition to above, he shall be liable for cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, by the Government or local authority ,as the case may be, for carrying on his business or activity.
OTHER LAWS PERTAINING TO WORKPLACE SEXUAL HARASSMENT
1. Industrial Employment (Standing Orders) Act, 1946
The Standing Orders Act prescribes Model Standing Orders, serving as guidelines for employers and in the event that an employer has not framed and certified its own standing orders, the provisions of the Model Standing Orders shall be applicable. The Model Standing Orders prescribed under the Industrial Employment (Standing Orders) Central Rules, 1996 (Standing Orders Rules) prescribe a list of acts constituting misconduct and specifically includes sexual harassment. The Model Standing Orders not only defines sexual harassment in line with the definition under the Vishaka Judgment, but also envisages the requirement to set up a complaints committee for redressal of grievances pertaining to workplace sexual harassment. It is interesting to note that sexual harassment is not limited to women under the Standing Orders Rules.
2. Indian Penal Code, 1860
The following offences are held to be cognizable and punishable with fine/and imprisonment under the Code:
(i) Outraging the modesty of a woman u/s 354.
(ii) Sexual harassment by a man u/s 354-A.
(iii) Assault or use of criminal force to woman with intent to disrobe u/s 354-B.
(iv) Voyeurism u/s 354-C.
(v) Stalking u/s 354-D.
(vi) Insulting the modesty of a woman u/s 509