Act: The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013

Rules: The Sexual Harassment of Women at Workplace Rules, 2013

INTRODUCTION:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 “PoSH Act” is a comprehensive law aimed at ensuring a safe working environment for women. Educating both employers and employees about sexual harassment enhances their ability to identify and prevent such incidents.

WHAT IS SEXUAL HARASSMENT?

The PoSH Act defines sexual harassment which includes below:

1. Physical contact and advances
2. Demand or request for sexual favours
3. Making sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Which women are covered?

In addition to below categories of women employees, even women who visit any work place as a client or visitor are also covered:

• Full time employees
• Temporary workers
• Contract workers
• Daily wage employees
• Trainees
• Interns
• Contractual workers
• Domestic workers

Authorities to whom complaint has to be lodged by the aggrieved women:

The PoSH Act prescribes below two authorities, based on the employee strength of the organization.

10 or more headcount: Internal Committee:

Organizations with ten or more employees must establish an Internal Committee (IC) to investigate complaints of sexual harassment. The employer should nominate to the IC:-

• One Presiding Officer who must be a senior woman employee from the workplace of the employer or any other workplace or organization;
• Two members amongst employees preferably who are committed to the cause of women/ are experienced in social work or having legal knowledge;
• One external member who is from an non government organization (NGO) or other women’s organization or a person familiar with issues relating to sexual harassment.

At least one-half of the nominated members of the IC must be women. The members shall hold office for a maximum of three years from date of nomination. The employer must display contact details on the notice board so that all women know whom to contact for filing a complaint.

Headcount 9 or below: Local Committee:

In organizations with less than ten employees, the complainant can file the complaint with the Local Committee (LC) constituted in the district. The District Officer will nominate to the LC a chairperson from amongst the eminent women in the field of social work and committed to the cause of women and other women members. The complaint should be filed online through the SHE portal, also known as the Sexual Harassment Electronic Box (SHe-Box), which is an online platform launched by the Government of India. The link to the online portal is https://shebox.wcd.gov.in/ or the woman employee or any other person on her behalf can file an offline complaint with the concerned jurisdictional District Office.

WHAT SHOULD THE COMPLAINT CONTAIN?

When drafting a Sexual Harassment complaint, it's crucial to include all pertinent details, supporting documents, and witnesses. The complaint should contain facts and relevant details. It there are any witnesses, their details must be provided as well. The Complainant must provide 6 copies of the complaint along with supporting documentation, names and addresses of the witnesses to the IC or LC. Here's a link to the image format which can be downloaded on what to be included in a complaint:

REDRESSAL PROCESS

1. A Complaint of sexual harassment maybe lodged within three months of the incidentIf there are a series of incidents, the complaint should be filed within three months of the most recent incident.
2. In case the Complainant is unable to write the complainant due to her being physically or mentally incapable or death, PoSH Act allows her legal heir or other such person to file a complaint on her behalf.
3. At the request of the aggrieved woman the IC or LC can settle the matter through conciliation.

INQUIRY PROCESS:

1. The IC/LC will send one copy of the complaint to the Respondent within a period of seven working days. The Respondent will file his reply to the committee within ten working days.
2. The committee will make an inquiry into the complaint in accordance with the principle of natural justice.
3. The committee will have a right to terminate the inquiry proceedings or give ex parte decision, if the complainant or respondent fails to present himself or herself for three consecutive hearings. Before such a decision is taken the committee will give notice of fifteen days to the parties. The parties will not be allowed to bring in any legal practitioner for representation.
4. A minimum of three members of the committee will be present for the inquiry. The inquiry must be completed within ninety days. The aggrieved woman can appeal within ninety days.

CONFIDENTIALITY CLAUSE:

The PoSH Act includes a confidentiality clause to protect the privacy of sexual harassment victims and ensure they receive justice. This clause emphasizes that the information provided is treated with complete trust.

Penalties under PoSH:

1. Penalties specified by the organization's service rules.
2. If no service rules exist, possible disciplinary actions include: issuing a written apology, providing a warning, delivering a reprimand or censure, withholding promotions or salary increases, terminating employment, mandating counselling, or requiring community service.
3. Reducing the respondent's wages to compensate the affected woman (as per Section 13 of the PoSH Act).
4. Additionally, Section 15 of the PoSH Act outlines compensation for the affected women, considering factors such as:

- The mental trauma, pain, suffering, and emotional distress experienced by the employee;

- The impact on career opportunities due to the harassment;

- Expenses for physical and mental health treatment incurred by the victim;

- The income level or status of the alleged perpetrator;

- The feasibility of lump sum versus instalments payments.

If the respondent fails to pay the compensation, the Internal Committee will forward the recovery order to the District Officer.

A common question among working women is whether sexual assault at a client’s workplace or event falls under the parameters of the PoSH Act.

Yes, if a woman is assaulted at a client's place or during a client's event, it can still fall under the PoSH Act, provided that: the legal framework acknowledges that sexual harassment can transpire in multiple settings, such as employer-hosted social events, events that arise during business travel, incidents that take place at a client or customer's premises, incidents that transpire during training sessions, business meals, promotional events, or events that are held in front of clients, customers, or potential partners.

Additionally, the PoSH Act’s scope extends beyond the physical workplace to include phone conversations and electronic communications related to work. Employers are responsible for ensuring a safe work environment, which encompasses addressing harassment in these extended contexts. The location where the incident occurred is considered a “Workplace” under the PoSH Act.

In such cases, the Internal Committee (IC) of the organization should investigate the incident as they would any other workplace harassment complaint, and take appropriate actions based on their findings.

Employer Compliance:

It is the employer’s responsibility to ensure that PoSH awareness training and workshops are organized quarterly. They must display the penal consequences of sexual harassment and the list of Internal Committee members in a prominent place at the workplace. Aditionally, the employer must provide the necessary facilities to the Internal Committee for handling complaints and conducting inquiries.

Annual Reporting

The Internal Committee (IC) must prepare an annual report and submit it to the employer each calendar year. This report should then be submitted to the District Officer on or before January 31st of each year. The annual report must contain the following details:

1. Number of complaints of sexual harassment received in the year.
2. Number of complaints disposed of during the year
3. Number of cases pending for more than 90 days.
4. Number of workshops or awareness program against sexual harassment has been carried out.
5. Nature of action taken by the employer or District Officer.

PENTALY FOR NON-COMPLIANCE OF THE PoSH ACT:

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
• Failure to file an annual report to the District Officer
• Contravening or attempting to contravene or abetting contravention of the Act or Rules.

CONCULSION:

Ensuring a safe working environment should be a top priority for employers. The PoSH Act enforces this by raising awareness about gender sensitization and sexual harassment. Sexual harassment includes not only requests for sexual favors and non-consensual physical contact but also psychological pressure from unwanted sexual advances, coercion, or attention.It’s crucial for both employers and employees to adopt and implement the PoSH Act, ensuring the employees are educated about it. The most effective way to prevent such incidents is by actively promoting initiatives that raise awareness and encourage prevention efforts.