“Explore the evolving landscape of POSH policies post-COVID. Discover key amendments and crucial clauses for a comprehensive Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 compliant policy. Author Harsh Sarawgi sheds light on essential elements to ensure a safe, inclusive work environment.”
Many Companies during the Me-Too movement and outbreak of corona virus from March, 2020, made significant changes in their POSH Policy to make it in line with Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. They have extended the scope of sexual harassment from just cubes and cubicles to homes from which they are working, clients’ offices which they visit as part of employment etc.
Therefore, in this article I will take you through the some of the crucial clauses which should essentially be there in Companies POSH Policy.
Revisiting POSH Policy: Post Covid Scenario
Many Companies during the Me-Too movement and outbreak of corona virus from March, 2020, made significant changes in their POSH Policy to make it in line with Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. They have extended the scope of sexual harassment from just cubes and cubicles to homes from which they are working, clients’ offices which they visit as part of employment etc.
Therefore, in this article I will take you through the some of the crucial clauses which should essentially be there in Companies POSH Policy.
(1) Introduction
This clause gives brief overview of Company’s stand towards prevention of sexual harassment at workplace through upholding high ethical and moral values, providing safe and holistic work environment, workplace free from any discrimination, treating every employee with respect and dignity.
We can also add that Sexual Harassment at Workplace results in violation of fundamental rights of an individual exhibited under Article 14 (Right to Equality), Article 19 (Practice or Carry on any Profession, Trade or Business) and Articles 21 (To Live Life with Dignity) of the Constitution of India.
Reference to the applicable laws can also be given.
However, it is interesting to note here that length of Introduction para depends upon party to party. Some may want it to be just general other may require it to be lengthy to look more encapsulating.
(2) Purpose of having POSH Policy at Workplace
Drafting of “Purpose of POSH Policy” should be to promote a healthy work environment that is free from harassment of all kinds for all employees covered including but not limited, to redressal of complaint received by the Employer and steps taken to prevent and prohibit such practices at workplace.
Purpose should align with intention of the legislature to enact Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and rules made thereunder.
(3) Application/Scope
Under Section 3(1) of Sexual Harassment of Woman (Prevention, Prohibition and Redressal) at Workplace Act, 2013 has restricted prevention of sexual harassment to only woman only, where such a constricting view in a dynamic and variable business environment can’t be adopted. It is observed that other genders also become victim of sexual harassment.
It is generally advisable to formulate POSH Policy comprehensively gender neutral irrespective of their caste, creed, colour and sex.
Continuing with the same thread on scope of POSH Policy, POSH Policy of a company should not be restricted to just employees working within the four walls of office. Section 2(f) of Sexual Harassment of Woman (Prevention, Prohibition and Redressal) at Workplace Act, 2013 has come up with a broader definition of Employee.
An employee means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
Further, any client, vendors, guests, visitors are also now shielded under the policy and they have the right to file complaints against an employee of the company, if they face any instances of sexual harassment. To be continued with definition of workplace.
(4) ‘Workplace’-Its beyond your office chambers
It is sometimes observed that in POSH Policy, workplace is not defined and if it is defined then its coverage is very restrictive. In the sense that workplace’s definition confines itself to cubicles and cabins in office premises.
However, definition of workplace would now cover any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey, a dwelling place or house as well.
Therefore, a workplace would cover visiting client sites including the transportation required to make such visits, any parties attended for work, dwelling place or house. If an employee is working from home then such home will now become workplace and protection from sexual harassment extends to such workplace.
Scope of workplace is made very widespread in Section 2(o) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
(5) Sexual Harassment
No POSH Policy is complete till the time Sexual Harassment with broad outlook is defined in it. Sexual Harassment covers any unwelcome acts or behaviour, whether directly or by implication, of a sexual nature which make a person feel humiliated, offended, helpless and/or intimidated. It can include physical contact, a demand or request for sexual favors, making sexually covered remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Besides these definitions, other terms should also be defined in any company’s POSH Policy which can include but not limited to Complainant, Employer, Internal Complaints Committee, Respondent etc.
(6) Internal Complaints Committee
Without constituting Internal Complaints Committee, your POSH Policy is near to void. Statutorily and logically there needs to be a committee or a mechanism before which a victim of sexual harassment can file complaint against the wrongdoer/respondent.
Section 4 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 states followings things which an employer must adhere to:
(i) Constitute an Internal Complaints Committee consisting of:-
> Presiding officer needs to be women employed at a senior level at workplace;
> Not less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
> One member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
Note: It is generally observed that company do constitute ICC but the external member is not actually coming from a background of NGOs committed to the cause of women or is associated to the cause of women or a person familiar with the issues relating to sexual harassment.
So I generally advise that such an external member should be committed to the cause of women or an advocate, company secretary having legal and practical knowledge in dealing with such matters.
(ii) Such a committee must have at least one-half of the total members so nominated shall be woman.
(iii) Tenure of presiding officer and every member of ICC should not be more than 3 years.
Many POSH Policy of companies do not incorporate as to what shall be the functions of ICC committee. So, giving a brief as to functions of ICC committee will be instrumental for employees and committee members.
(7) Complaint Mechanism
In today’s digital world, most companies give the option to file complaint against Sexual Harassment to ICC by stating the email id at which complaint will be tendered in POSH Policy. This method keeps the confidentiality of complainant, respondent and public image of organisation as well.
Any aggrieved employee/complainant/victim may make, in writing, a complaint of sexual harassment at workplace to the ICC within a period of 3 months from the date of incident and in case of a series of incidents, within a period of 3 months from the date of last incident.
However, Presiding Officer or any Member of ICC shall render all reasonable assistance to the aggrieved employee/complainant/victim for making the complaint in writing.
Further, ICC has the power to extend the period of 3 months for filing of compliant, if it is satisfied that the circumstances were such which prevented the aggrieved employee/complainant/victim from filing a complaint within the said period.
If aggrieved employee/complainant/victim is unable to make a complaint on account of physical or mental incapacity or death or otherwise, his/her legal heirs or:
> Relative or friend;
> Co-worker;
> An officer of National Commission for Women or State Women’s Commission;
> A special educator;
> A qualified psychiatrist or psychologist;
> The guardian or authority under whose care he/she is receiving treatment;
> Any person who has knowledge of the incident, with his/her written consent or with the written consent of legal heir( in case of death of aggrieved employee/complainant/victim only)
(8) Conciliation or Settlement before commencement of Inquiry proceedings
This clause provides for a mechanism or due procedure to be complied, if complainant and respondent comes with a settlement through conciliation.
If a complainant is coming with a compliant on sexual harassment then it is pragmatic response for the Internal Committee. It is a symbol of faith & belief complainant is having in the ICC and trust that the complaint will be resolved in the best possible manner. Therefore, it is indispensable for ICC to make use of conciliation as a tool for resolving complaints.
Section 10 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 lays down the procedure to be followed for conciliation. Conciliation clause in POSH Policy needs to be adhered to the requirement of this section.
Note: Many a times it is generally observed that POSH Policy of company does not mention that Settlement so arrived at or copies of Conciliation Settlement Agreement so signed shall be provided to aggrieved employee/complainant/victim and respondent. So, I advise companies to include this line in their POSH Policy which create a sense of belongingness, loyalty in employees.
Therefore, conciliation strives to resolve problems in the workplace with a scope for rehabilitation, as it imparts consolation that not all complaints require their disposal at the Inquiry Stage.
(9) Inquiry/ Redressal of Complaint
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 read with Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 explicitly stipulated the timelines within which the complaint must be filed, replies to be filed by respondent, ex-parte orders to be made, complaints to be disposed of and after receipt of order, recommendations from ICC, timeline for employer to act upon.
This clause shall be drafted in a manner which exhibits whole procedure to be followed for conducting investigation and inquiry into the complaint. Some of the points it can have like:
> Principles of natural justice to be followed;
> ICC shall have the powers similar to that of civil court under Code of Civil Procedure, 1908;
> Parties shall not bring legal practitioner to represent them in their case;
> Right to terminate the proceedings or to give an ex-parte decision on the complaint;
> Quorum to be present at the meeting of ICC including the Presiding Officer;
> Timeline for employer to take action on recommendation made by ICC;
> Actions that can be taken during the pendency of investigation as recommended by ICC to employer;
> Factors to be taken into consideration by ICC for arriving at compensation or sums to be paid to aggrieved employee/complainant/victim.
(10) Disciplinary actions
This clause generally prescribes what disciplinary actions can be taken against persons who found to have indulged in violating the provisions of POSH Policy. This includes but not limited to termination of services, written apology, warning, reprimand or censure, withholding of promotion or increments, undergoing a counselling session or carrying out community services etc.
(11) Appeal
This clause is of utmost importance and should always find a place in POSH Policy, as the every employee of the company should know what recourse is available to them, if they are unsatisfied with the recommendations put forth by ICC on complaint. An appeal can be preferred before the court or tribunal in accordance with the provisions of the services rules.
Further, provision of appeal also finds a place in Section 18 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 read with Rule 11 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.
(12) Awareness Programmes
An effective POSH Policy must include this clause. Even today as well many employees don’t know as to what is considered as inappropriate behaviour and what constitutes sexual harassment. Therefore, there is a need to conduct awareness programmes on part of the employer.
Section 19 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 encompasses the duties of employer in which one of the duty is to organise workshops and awareness programmes at regular intervals for sensitising the employees and orientation programmes for the members of the Internal Committee.
POSH Policy should provide various ways by which awareness can be created among employees for prevention, prohibition of sexual harassment. This may include but not limited to:
> Classroom sessions;
> eLearning courses;
> Posters and banners on POSH;
> Publishing crisp and engaging video on POSH Policy at the Company’s website.
Epilogue
Once you have drafted and adopted the POSH Policy and constituted the Internal Complaints Committee, if you think that our policy is now adopted and lets move forward then that’s a very big “NO”.
POSH Policy requires periodical assessment, ongoing evaluations of its clauses, updating with the amendments in the Act with a view to attain its purpose. It is also advisable to conduct an external audit on the performance of ICC, manner in which they are discharging their duties, did they exercise power which are not in their ambit etc.
POSH Policy can also be assessed and modified in accordance with feedback received from employees, experts, advocates, CS etc.
The author can also be reached out at harsh@sarvaankassociates.com or can be contact at +91-8171445822.
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