India did not have a separate law dealing with workplace sexual harassment till 2013. Consequently, unless an act of harassment was an offence under the Indian Penal Code (which defines criminal offences and prescribes penalties), victims of sexual harassment had no means of seeking redressal.

 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (“POSH Act”) was enacted in 2013 to [plug this legislative gap].

 

The POSH Act is structured in a way that makes the employer responsible for ensuring safety for all women at its offices, and not just its women employees. Further, the definition of workplace is such that it is not limited to the physical office, as understood in the conventional sense, but extends to transportation or any place where a woman employee travels in official capacity. Therefore, the coverage is extensive, and it is a question of fact in each case whether a place is a ‘workplace’ or not.

 

The POSH Act requires employers to set up a ‘internal committee’ (“IC”) at each office or branch which employs 10 or more employees. The IC is a forum for redressing grievances of women who have faced sexual harassment. The POSH Act prescribes the number of IC members of the IC, their background/qualifications (for example, one member should be someone who works in an NGO) and even gender-based requirements (minimum 50% women) to ensure that, given the nature off complaints to be handled by the IC, matters are handled with not just expertise, but pragmatism and sensitivity. Failure by the employer to constitute an IC is punishable with a fine (INR 50,000). The grievance redressal process is time bound to ensure efficiency.

 

The POSH Act also casts certain other obligations upon an employer, including declaration the names of the IC members on notice boards, assistance to victim to file a complaint under the Indian Penal Code (IPC) if victim chooses, providing necessary assistance and facilities to the IC in dealing with the complaints, formulation, implementation, and dissemination of internal policy for prevention of sexual harassment (“POSH Policy”), etc.

 

It is critical for employers to ensure that the POSH policy is prepared or reviewed by employment lawyers to ensure compliance with POSH Act, to mitigate the risk of imposition of fines [ or the revocation of any statutory business licenses]

 

In the subsequent paragraphs, we have briefly discussed the key considerations to be considered when formulating/implementing POSH Policies.

 

1. The POSH Policy should clearly explain the scope of “sexual harassment” 

 

The definition of ‘sexual harassment’ under the POSH Act is wide enough to cover both direct or implied sexual conduct which may involve physical, verbal or even written conduct.

 

For instance, it includes (inter alia) quid pro quo sexual harassment (a form of sexual blackmail where a person in power, pressurizes the woman subordinate for sexual favours in exchange for advancement or threat of adverse action) and creation of an ‘intimidate, offensive or hostile working environment’. Illustrations (derived from actual case laws) should be used to explain the definition to employees.

 

 

2. The POSH Policy should clearly provide the complaint mechanism. 

 

The POSH Act prescribes a process for raising complaints of sexual harassment, and a step-by step flowchart with respect to the same can be accessed here.

 

 

The POSH Act also allows provisions for friends, relatives, co-workers, psychologist & psychiatrists, etc. to file the complaint in situations where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity, or deaths.

 

 

3. Confidentiality 

 

The POSH Act recognizes the sensitivity attached to matters pertaining to sexual harassment, therefore, attaches significant importance to ensuring that the complaint and connected information are kept confidential.

 

The POSH Act prohibits dissemination of the contents of the complaint, the identity and addresses of the complainant, respondent, witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the IC and the action taken, to the public, press and media in any manner. However, at the same time dissemination of information pertaining to the justice that has been secured for any victim of sexual harassment is allowed, without disclosing the name, address, identity, or any other particulars which could result in the identification of the complainant or the witnesses. The POSH Act prescribes penal action (fine of INR 5000) for breach of this confidentiality obligation.