Sexual Harassment of Women at Workplace (POSH)
In light of recent incidents of crime against women in India, it is essential that women are aware of their rights and the employers are aware of the law which prevents sexual harassment of women at workplace.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, India
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the law for safety of women at workplace in India.
The primary basis of the Act lies in the decision of the Apex Court in the case of Vishakha v. State of Rajasthanwherein the Court ruled that actions resulting in violations of one’s rights to Gender Equality and Life and Liberty are violation of his/her fundamental right under Article 19(1)(g) of the Indian Constitution which provides for the right to practise any profession, or to carry on any occupation, trade or business.
The Object of the Act is to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.
The Act also renders a definition of “sexual harassment” any one or more of the following unwelcome acts or behaviour namely-
- Physical contact and advances
- Demand or request for sexual favours
- Making sexually coloured remarks
- Displaying sexist/ offensive pictures, posters, MMS, SMS, WhatsApp, e-mails showing pornography
- Any unwelcome/ offensive physical, verbal or non-verbal conduct of sexual nature.
- Implied/ explicit promise of preferential/ detrimental present/future treatment in employment
- Interference with work or creating an intimidating/ offensive/ hostile work environment by undertaking any acts of sexual harassment.
- Humiliating treatment likely to affect health/ safety
One of the essential provisions of the Act is the constitution of the Internal Complaints Committee (ICC). The provision mandates the constitution of the Committee by an employer of a workplace. The ICC will be composed of the following members::
- Presiding officer who shall be employed at a senior level at workplace from amongst the employees, if not available then nominated from other office/ units/ department/ workplace of the same employer;
- 2 Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
- 1 Outside counsel i.e. member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
The Act also lays down the duties of an employer which inter alia includes providing of a safe working environment, display in the office the penal consequences of sexual harassment at workplace, organize awareness programmes, treat sexual harassment as a misconduct under service rules and assist the women in filing a complaint against the culprit.
Any of the below listed women aggrieved with an incident of sexual harassment can make a complaint to report such incident:
- Employees of the organization
- Contract workers
- Visiting any workplace
- Apprentice/ Trainee
An aggrieved woman can make a complaint to the Human Resources Department (HR Department) who will then forward the same to the Internal Complaints Committee present in the employer organization. The complaint can be made within a period of 3 months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. The complaint made should comprise of the below mentioned details describing the incident of sexual harassment:
- Date of the incident,
- Time of the incident,
- Name of the accused party(ies) of the incident
Sexual harassment– Procedure to undertake POSH enquiry
The HR Department can on receipt of the complaint should inform the aggrieved woman regarding the informal (settlement) as well as formal mechanism of redressal of the complaint and extend all reasonable support to her in the process involved thereto.
The detailed procedure is listed below:
- On the receipt of complaint (6 copies along with supporting documents and names, addresses of witnesses), the ICC shall acknowledge the receipt of the complaint and ensure clarity and conformity of the allegations comprised therein.
- Within 7 days of receiving a complaint, the ICC will inform the accused in writing that a complaint has been received and give such person an opportunity to respond to the complaint in writing within 10 days therefrom.
- ICC shall summon and enforce the attendance of any person and examining witnesses on oath, requiring the discovery and production of documents;
- While exercising the principles of natural justice ICC shall record its finding and observations based on which it may submit its recommendations to the Employer for further action.
- No legal practitioner should be permitted to represent the case of either the aggrieved woman or the accused.
Reliefs granted by ICC in furtherance to the complaint
Considering the sensitivity of the issue and the impact of the incident, the ICC may grant any of the below mentioned reliefs to the aggrieved women:
- Transfer the aggrieved woman or the respondent to any other workplace;
- Grant leave to the aggrieved woman up to a period of three months. The leave granted to the aggrieved woman shall be in addition to the leave she would be otherwise entitled
Penalties against the person found guilty in the POSH enquiry
While arriving at the conclusion that an accused is guilty of committing an act of sexual harassment may penalize such a person in any manner including but not limited to the following:
- Tendering of written apology by the accused;
- Deduction of the salary or wages of the accused.
- Suspension/ Termination of the accused.
Where it is observed by ICC that the aggrieved woman has made a false complaint, the ICC may punish such person by recommending the Employer/ District to action against such person in accordance to the provisions of service rules or where no such service rules exist, in such manner as may be prescribed.
Further, it is mandatory for the employers to prepare an annual report including the number of cases filed, if any, and their disposal to the District Officer.
The aforesaid laws and rules indicate that India has robust laws and regulation for protecting the interests of labour at workplace or establishment. However, it is essential that the employee is aware of his/ her rights and duties.
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