POSHCOMPLY is dedicated to deliver in a manner that the organizations are compliant of the Laws while embracing the finest practices for an ethical, safe and equal opportunity workplace.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 (“POSH”)
The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 (“POSH”)
The act was passed in pursuance of Vishakha guidelines given by the Hon’ble Supreme Court of India. In the case Vishakha and others v. State of Rajasthan, 1997 the Supreme court acknowledged the gravity of sexual harassment of working women and laid down guidelines, making it mandatory for employers to prevent occurrence of such offences. It was held by that the sexual harassment of a woman at a workplace would be violative of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. The court concluded that such Act would be considered as a violation of women’s human rights.
The act was also required to protect fundamental rights under article 14 which talks about equality before law, article 15 which says that there shall be no discrimination on the basis of caste, creed, race, colour, sex, etc, article 19(1)(g) which gives a right to carry out any profession, it (the act) do directs the state to provide just and human conditions at workplace under article 42 of the constitution
India had already signed Convention on Elimination of all forms of discrimination against women, (CEDAW) but had no domestic law in furtherance of it. So, this was to assimilate the international obligation in Indian legal system.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 mandates every Employer to “provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace” (Section 19 (a)).
For this, it provides that the aggrieved can file a complaint of sexual harassment within the organization itself and seek redressal via the internal mechanism. For the success of this, all organizations (whether public or private) having 10 or more employees (whether permanent, temporary, ad-hoc, consultants, interns or contract workers irrespective of gender) are mandated under Law to comply with certain requirements.
Non-compliance with POSH can cost the employer monetary penalties and exemplary damages imposed by the courts. This may also harm the reputation of the company and create a hostile work environment.
Non-compliance with POSH can cost an employer a monetary penalty of INR 50,000. 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 with the District Officer where required
• Contravening or attempting to contravene or abetting contravention of the Act or Rules.
Where an employer repeats a breach under the Act, they shall be subject to:
• Twice the punishment or higher punishment if prescribed under any other law for the same offence.
• Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.
Lacking POSH compliance may also harm the reputation of the company and create a hostile work environment.
Where an employer repeats a breach under the Act, they shall be subject to:
• Twice the punishment or higher punishment if prescribed under any other law for the same offence.
• Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.
Lacking POSH compliance may also harm the reputation of the company and create a hostile work environment.
Checklist for the POSH compliance
Formation of appropriate Internal Committee
Providing external member to the Internal Committee
Drafting appropriate POSH policy
Documenting the POSH policies and disseminating the same amongst employees.
Affixing relevant posters at the conspicuous places
Drafting appropriate “order in writing” for the constitution of the internal committee
Drafting annual report
Regular interactive sessions/ quarterly meetings/ trainings to educate & empower employees /staff/ internal committee about their rights as well as duties under the law against sexual harassment as well as on unconscious bias, consent, stereotypes, prejudices and discrimination.
Filing the compliances with the appropriate District officer and disclosure of the same in the Annual report.
DUTIES OF THE EMPLOYER
The law defines an employer to mean any person responsible for the management, supervision and control of the workplace and management includes the person or board or committee responsible for formulation and administration of polices for such organisation.
The employer is duty bound to initiate disciplinary action against the officer involved in sexual harassment, as it involves human dignity of women enshrined under Articles 14, 15 and 21 of the Constitution and the inquiry must be fair and reasonable.
The law has provided for duties of an employer, some of which are provided below.
Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
Display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee.
Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee.
Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women.
Carry out orientation programmes and seminars for the Members of the Internal Committee.
Carry out employees’ awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as may be considered necessary.
Conduct capacity building and skill building programmes for the Members of the Internal Committee.
Declare the names and contact details of all the Members of the Internal Committee.
Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act.
Provide necessary facilities to the Internal Committee for dealing with the complaint and conducting an inquiry.
Assist in securing the attendance of respondent and witnesses before the Internal Committee.
Make available such information to the Internal Committee as it may require having regard to the complaint.
Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code.
Cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.
Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.