PoSH Act 2013 – Sexual Harassment of Women at Workplace
PoSH Act 2013: All You Need To Know
Roma has been with Tree House Pvt. Ltd. for over 5 years as a senior executive. Mohan, who recently joined the organization as a manager, oversees a staff of six people, including Roma. Mohan, taking advantage of his position, casually makes sexual remarks about her appearance and body. Despite Roma’s protests and requests that he stop, Mohan continues to make similar assertions, and his behavior increases by the day. He progressively begins to touch her inappropriately and gradually gets the courage to do so in front of the other team members. Roma feels assaulted not just physically, but also mentally, on a daily basis. She talks about it with several of her co-workers who have observed these gestures but are too terrified to make a complaint against their own manager.
WHAT CAN ROMA DO IN THIS SITUATION?
To ensure that thousands of women like Roma get immediate justice and to promote a safe environment by protecting women in various work scenarios, The PoSH Act (Prevention of Sexual Harassment Act) was formed on 9th December 2013 by the Supreme Court of India superseding the existing Vishaka Guidelines 1997 that were followed at the time.
What is PoSH Act 2013?
“The PoSH Act, as mandatory compliance, requires every company with 10 or more employees to constitute an Internal Complaints Committee (ICC) in the prescribed manner in order to receive and address the complaints of any sort of sexual harassment from women in a time-bound and extremely confidential manner.“
WHY IS THE PoSH ACT IMPORTANT?
- Prevention – Guidelines enforced by the Act are required to be followed by all employees of an organization.
- Prohibition – Adhering to those guidelines.
- Redressal – Effective Grievance Redressal Mechanism with immediate action against the wrong doers.
Before the PoSH Act, Justice Sujata Manohar from the Supreme Court Bench framed the Vishaka Guidelines in 1997 after the landmark judgment case of Bhanvari Devi, a social activist against child marriage who was gang-raped by 5 men in front of her husband to strive fear among the other supporting villagers in Rajasthan. This case led to the establishment of the Sexual harassment at Workplace Guidelines which were referred to as Vishaka Guidelines. These Guidelines were named after Vishaka or Migāramāta, a wealthy aristocratic woman who lived during the time of Gautama Buddha. She is considered to have been the chief female patron of the Buddha. In 2013, the Prevention of Sexual Harassment Act (PoSH) took over the Vishaka Guidelines.
WHAT ACCOUNTS AS SEXUAL HARASSMENT ACCORDING TO PoSH ACT?
According to PoSH Act, any of the following unwelcomed behavior is termed as Sexual Harassment.
- Physical Contact and Advances
- Demand and request for sexual favours
- Making sexually oriented remarks
- Showing pornography
- Any other unwelcomed conduct of sexual nature which includes
- Physical Harassment
- Mental Harassment
- Verbal / Non Verbal Harassment
If you notice any of the following behaviors at your workplace then it is your duty to inform the same to the IC of your organization immediately.
HOW DO I COMPLY WITH THE PoSH ACT IN MY ORGANIZATION?
The PoSH Act guidelines are mandatory to be followed by all organizations having more than 10 employees.
Firstly, you will need to constitute an Internal Complaints Committee (ICC) that accepts Sexual Harassment Complaints and take action on them immediately. This committee should consist
- A women Presiding Officer
- 2 members internally
- 1 external member to ensure unbiased third party judgement in the committee
- Minimum requirement for forming an ICC is that half of the total members must be women
- All these members need to have legal knowledge and be a part of a social group or a NGO.
- All the above members can hold the their term for 3 years
Things to keep in mind to comply with the PoSH Act:
- Promote a safe working environment in your organization through flyers and banners.
- Setting up strict PoSH policies which also comply with the ICC (Internal Complaints Committee) and LCC (Local Complaints Committee) and make sure these policies are implemented and regularized at all levels.
- Conduct employee PoSH Workshops, trainings and educational programmes mandated by the law.
- Irrespective of the intentions of the accused or level of impact, every single complaint has to be taken seriously and investigated by the IC.
- File annual and director reports according to Section 21 of the PoSH Act.
Non-Compliance of the PoSH Act can turn out to be costly and lead to:
- Penalties starting from ₹50000 for first time offense or not conducting mandatory PoSH trainings.
- Cancellation of Business License for multiple offenses or if law is not followed.
HOW SHOULD ONE HANDLE A PoSH CASE?
- Encourage the complainant to file a case with the ICC immediately.
- Gathering and documenting all evidence for building the case is key.
- Confidentiality is a must for a PoSH case.
- Educate both the parties of their rights, procedures and timelines during and post investigation.
- Don’t force Conciliation.
Actions taken by the ICC include
The ICC can recommend a range of actions that includes
- Warning, Counselling and Community Service.
- Suspension or withholding a promotion.
- Termination of the employee.
- File for further Police Investigation.
PoSH ACT IN WORK FROM HOME SITUATION
After the impact of Covid 19, working from home is considered as the new normal for most organizations. If your organization follows work from home policy then you might wonder about the boundary between work from home and office when it comes to enforcing the PoSH Act.
The answer is YES!
POSH Act recognizes home as workplace as it is a “place visited by the employee arising out of during the course of employment”
Meaning, if an employee faces any kind of sexual harassment either by media, inappropriate videos, WhatsApp messages, video calls etc. then the ICC is obliged to consider such cases even if the employee is working from home.
The ‘SHe BOX’
The Sexual Harassment electronic Box or the ‘SHe Box’ is an online complaint platform introduced by the WCD (Ministry of Women & Child Development) which provides female employees a space to raise complaints online at their workspace. These anonymous complaints are then taken up by the ICC or LCC set up by the respected district government and action is taken immediately. It is open to all private and public sector employees.
| Topic | Details |
|---|---|
| What is PoSH Act? | Prevention of Sexual Harassment is mandatory compliance to safeguard women in a workspace by providing an effective redressal forum for complaints against sexual harassment. |
| Who is eligible for PoSH? | Companies having more than 10 employees. |
| 3 Objectives of PoSH | Prevention, Prohibition, Redressal. |
| What is ICC? | ICC is a complaint committee formed by provision of the PoSH Act. |
| How to comply with PoSH Act? | Promote safe working environment through flyers and banners, set up strict PoSH policies, conduct employee PoSH trainings and workshops, take all cases with equal importance, and file annual reports. |
| Penalties for non-compliance | ₹50,000 for a first-time offense; cancellation of business license for multiple offenses. |
| How to handle a PoSH case | Encourage the complainant to file a case, gather evidence, keep things confidential, educate both parties about their rights, procedures, and timelines, and do not force conciliation. |
| Work from Home applicability | Yes. Any place visited by the employee during the course of employment is recognized as workplace under the PoSH Act. |
| What is SHe Box? | The SHe Box is an online sexual harassment complaint redressal platform introduced by WCD. |
HERE ARE SOME INTERESTING FACTS ABOUT ABOUT PoSH
An organization can have policies and guidelines that protect both men and women. However, protection under the PoSH Act is available only to women. Hence, the PoSH Act is NOT gender neutral.
Ideal time limit for filing a complaint under PoSH is 3 months from the time of the incidence that was occurred. However, exceptions are considered by the ICC from case to case basis.
The Section 14 under PoSH Act clearly states that lack of evidence is not considered as a false complaint and the ICC is required to investigate such cases too.
Suggestions and course of action provided by the ICC and LCC are mandatory to be implemented by the Senior Management of an organization.
A PoSH case can be filed against an employee who is NOT a part of the organization and a notice has to be sent to the third party immediately.
Under Section 2(o) an Extended Workplace under PoSH covers all the places in which the employee travels during the course of employment by transportation, company sponsored events, etc.
Under the PoSH law, it is mandatory to set up an IC within the PoSH guidelines at every branch of the organization.