POSH ACT: A Step to Stop Sexual Harassment at the workplace

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, often known as the ‘POSH Act’, is an Indian law created to make workspaces safer and more secure by preventing, forbidding, and remedying acts of sexual harassment against them in the workplace. The Ministry of Women and Child Development declared the law applicable throughout India on December 9, 2013. Let’s get in deep and understand what is all incorporated in the POSH Act.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act, 2013

Preamble:

“An Act to protect women at work from sexual harassment, to prevent and resolve sexual harassment complaints, and to provide for things associated with or incidental thereto.”

Section 2(a) specifies “aggrieved woman” as:

(i) In the case of a workplace, a woman of any age, regardless of being employed or not, who claims that the responder has sexually harassed her;

(ii) in the case of a dwelling place or home, a woman of any age who works in such a dwelling place or house.

Section 2(e) identifies a “domestic worker” as a person who is employed to undertake household duties in any house, whether in cash or in-kind, on a temporary, permanent, part-time, or full-time basis, either directly or via an agency, but does not include any member of the employer’s family.

Section 2(f) “employee” defines any person employed at a workplace on a regular, transitory, ad – hoc basis, or daily salary basis, whether directly or via an agency, including a contractor, for any task, with or without the knowledge of the principal employer, whether for remuneration or not, or working voluntarily or otherwise, whether the terms of employment are express or implied, and entails a co-worker, probationer, a contract worker, trainee.

Section 2(n) defines “sexual harassment” as any one or more of the following unpleasant acts or conduct (whether directly or indirectly):

(i) direct physical touch and advances; or

(ii) sexual favours demand or request; or

(iii) making sexually charged comments; or

(iv) displaying pornographic material; or

(v) any other unwanted sexual, physical, verbal, or nonverbal behaviour;

Section 2(o) defines “workplace” as—

(i) any department, undertaking, establishment, organisation, enterprise, institution, office, branch, or unit founded, owned, managed, or completely or partially supported by funds given directly or indirectly by the relevant Government, local authority, Government company, corporation, or co-operative society;

(ii) any private sector company, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit, or a service provider engaged in commercial, professional, vocational, educational, entertainment, industrial, or financial operations, including production, supply, sale, distribution, or service;

(iii) Hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex, competition, or games site, whether residential or non-residential, utilised for training, sports, or other related activities;

(v) any location visited by the employee as a result of or during work, including transportation provided by the employer for such travel;

(vi) a place to live or a residence

Section 3 -is the POSH Act’s charge section, and it states that;

Section 3: Sexual Harassment Prevention.—

(1) No woman will be subjected to sexual harassment at any time or place of employment.

(2) The following situations, among others, may amount to sexual harassment if they occur, are present in connection to, or are related to any act or conduct of sexual harassment:

(i) an inferred or explicit promise of preferential treatment at work; or

(ii) an inferred or explicit threat of adverse employment treatment; or

(iii) a threat, implied or explicit, concerning her current or future work position; or

(iv) interfering with her job or making her work environment frightening, insulting, or hostile; or

(v) humiliating treatment is likely to jeopardise her health or safety.

Section 4– Section 4- All workplace employers must establish an “Internal Complaints Committee” by written order.

It should be noted that every office, branch, or site office with ten or more employees must have an ICC.

Section 9 of the PSOH Act stipulates that any aggrieved person may register sexual harassment’s in the workplace complaint letter with the ICC or if one is formed a local committee.

Section 10 – states that the ICC or Local Committee would attempt to resolve the complaint through mediation and conciliation by addressing the problem with the complainant and the respondent.

Section 11– When contemplating action, the ICC or Local Committee, as the case may be, shall have the identical powers as a Civil Court under the Code of Civil Procedure,1908, namely—

(i) Calling a person to appear and compel his attendance, as well as questioning him under oath;

(ii) Requiring document discovery and production; and

(iii) Any additional factors that may get specified.

Section 12 – specifies the steps to be taken by the ICC or the Local Committee while the complaint is pending.

(i) Transfer the dissatisfied lady or responder to another workplace;

(ii) Provide the lady with up to three months’ leave;

(iii) Provide the aggrieved lady with any additional remedies that may be provided.

Note that the aggrieved woman’s leave is in addition to the leave she would be entitled to in the normal course of her employment.

Section 13: Inquiry Report—

1. Within ten days following the end of an inquiry under the POSH Act, the Internal Committee or the Local Committee, as the case may be, should report its findings to the employer, or as the case may be, the District Officer and such report shall be made accessible to the affected parties.

Section 14: Penalties for false or malicious complaints and false evidence—

Action be taken against the respondent by the employer or the District Officer:

• If the Internal Committee or the Local Committee concludes that the accusation against the respondent is malicious or
• that the aggrieved woman or any other person making the complaint submitted the complaint knowing it to be false or
• That the aggrieved woman or any other person making the complaint provided any fake or deceptive document, it may suggest to the employer or the District Officer, as the case may be, that action is taken against the respondent.

Section 15: Compensation determination—

To calculate the sums to be given to the aggrieved lady under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall take respect to—

1. the aggrieved woman’s mental distress, agony, suffering, and emotional distress;
2. the loss of a professional opportunity as a result of the sexual harassment occurrence;
3. the victim’s medical expenditures for physical or psychological therapy;
4. the respondent’s income and financial situation;
5. the possibility of making such payment in a lump sum or instalments.

Section 16: Prohibition of publication or making known the contents of complaint and inquiry proceedings—

The substance of the complaint filed under section 9, the aggrieved lady’s name and address, the respondent’s name and address, and the names and addresses of any witnesses, as well as any material pertinent to the conciliation and inquiry processes, as the case may be, and the steps taken by the employer or the District Officer under the Act’s provision will not get divulged, regardless of what indicated in the Right to Information Act, 2005 (22 of 2005).

Provided, however, that information on the justice obtained for any victim of sexual harassment under the POSH Act may get published without exposing the name, address, identity, or any other particulars designed to lead to the aggrieved lady and witnesses’ identification.

Penalty for publication or making known the contents of complaints and inquiry proceedings—

Under the provisions of the POSH Act, if any person entrusted with the following violates the provisions of section 16:

• the duty of handling or
• dealing with the complaint, inquiry, or
• any recommendations or
• action to be taken

shall be liable for:

• A penalty following the provisions of the service rules applicable to the said person, or in such manner as may be prescribed in the absence of such service rules.

Section 18: Appeal—

(1) Any person dissatisfied with the recommendations made under sub-section (2) of section 13 or clause I or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section 14 or section 17 or the non-implementation of such recommendations may prefer an appeal to the court or tribunal following the provisions of the service rules applicable to the said person or, in the absence of such service rules, without pleading.

(2) The appeal under subsection (1) must get filed within ninety days of the recommendations.

Section 26: Penalty for failure to comply with the provisions of POSH Act—

(1) If the employer fails to:

(i) Form an Internal Committee following Section 4’s Subsection (1);

(ii) behave per sections 13, 14, and 22;

(iii) violates, attempts to violate, or aids in the violation of any other provisions of this Act or any rules established thereunder,

he shall get punished with a fine of up to fifty thousand rupees.

(2) Any employer having a previous conviction of an offence punishable under POSH Act commits and is convicted of the same conduct again will be subjected to:

(i) double the sentence imposed on a first conviction, subject to the maximum punishment specified for the same offence:

However, suppose a harsher punishment gets prescribed for the offence for which the accused is being prosecuted under any other legislation in effect at the time. In that case, the court must consider it when imposing the sentence.

(ii) termination of his licence or withdrawal, or non-renewal, or permission, or cancellation of the registration necessary for carrying on his business or activity by the Government or local authority, as the case may be

A look at sexual harassment of women at workplace

POSH Act defines sexual harassment in the workplace as explicit activities such as physical approaches, demanding or soliciting sexual favours, exhibiting pornography, making sexually coloured remarks, sending sexually explicit texts, and any other unwelcome sexual behaviour.

It also includes implicit acts in which a refusal to engage in sexually improper behaviour accompanied by threats that might jeopardise employment or create a hostile work environment.

Suppose that A sends improper forwards with sexual material to their employee, B. B ignores it and does not respond. Except for B, A invites the whole team to a transaction closing. When B inquires why they did not have the invitation, A informs them that the others responded to the messages, but B did not.

The Measures to be Taken for Prevention of Sexual Harassment Act at Workplace

To prevent sexual harassment in the workplace, all employers must take proper measures. They should perform the following measures without regard for this obligation:

• The express ban of sexual harassment as stated above and the regulated behaviour should be communicated, published, and disseminated appropriately.
• Private employers shall get urged to include the aforementioned restrictions in the Economic Employment (Standing Rules) Act’s standing orders.
• The rules/regulations of state and public sector entities governing conduct and discipline shall include rules/regulations preventing harassment and defining suitable punishments against the offender under such rules.
• Appropriate work circumstances in terms of labour, leisure, health, and cleanliness shall get maintained to guarantee no hostile atmosphere for women at workplaces.

Criminal Proceedings

When such behaviour amounts to specific offences under the Indian penal code or any other legislation, the employer must take proper legal action.

The employer shall make a complaint with the appropriate authorities or assist the aggrieved female in making a complaint with the appropriate authority. While investigating accusations of sexual harassment, it should ensure victims and witnesses are not threatened or discriminated against. Victims of harassment must have the option of requesting either the perpetrator’s or their transfer.

Disciplinary Action

When such conduct is proven to be misconduct, the employer shall take the appropriate disciplinary action provided by the applicable service regulations. So, the employer should take appropriate disciplinary measures.

Complaint Mechanism

Whether or not such conduct is an offence under the law or the service regulations, an adequate complaint mechanism must get maintained inside the employer’s organisation to resolve any complaint properly. A complaint process of this type should include the time-bound handling of concerns.

Complaints Committee

The complaint process should resolve complaints through the Complaints Committee. It should be made up of members who have prior knowledge of the POSH Act and the competence to deal with situations of sexual harassment.

• According to the POSH Act, A woman should lead the Complaints Committee. Furthermore, more than half of its members must be females.

Furthermore, to avoid any influence from higher levels, such a Complaints Committee should include a third party external member from either an NGO or any other organisation knowledgeable about resolving harassment complaints.

• The Complaints Committee must produce an annual report and submit it to the government department responsible for the complaints and measures are taken.

The employers and those accountable will report compliance with the aforementioned requirements. It will include a report to the government department on the functioning of the Complaints Committee.

Employees’ Initiative

Employees should be permitted to bring up harassment issues at meetings and other relevant forums. It should be mentioned positively at the organisation’s Employer-Employee meetings.

Awareness Programs

Awareness of the rights granted to female employees by POSH law should be fostered, particularly by conspicuously announcing the rules.

• The Central/State governments are asked to develop appropriate measures, including legislation, to ensure that all employers follow the rules outlined in the PoSH Act in the private sector.
• Where harassment arises due to any act or omission by a third party/outsider, the employer must take all necessary efforts to support the affected individual through preventative action.

How one can mentally get harassed at the workplace

In Indian law, there is no definition for the term “mental harassment.”

However, in L. Nagaraju vs Syndicate Bank and Ors, the Division Bench of the Hon’ble Andhra Pradesh High Court went on to describe the term Mental Harassment and referenced the “Indian Journal of Community Medicine” (official magazine of preventive and social medicine) in the article “A cross-sectional research in Coastal South India,” which defined “workplace harassment,” thus:

“Harassment” is defined as “any inappropriate or unpleasant action that may reasonably be expected or understood to cause another person offence or shame.“

Harassment can take the shape of words, gestures, or acts that irritate, alarm, abuse, degrade, intimidate, ridicule, humiliate, or embarrass another person, or that creates an intimidating, hostile, or unpleasant workplace environment.”

“Finally, we may thus state or define workplace harassment as follows: Workplace harassment is any type of unwelcome action taken against an employee by the employer or anyone acting on his behalf that causes difficulty in performing assigned tasks or causes the employee to feel he or she is working in a hostile environment,” the Division Bench of the Hon’ble Andhra Pradesh High Court added.

Harassment might be motivated by ethnicity, gender, culture, age, sexual orientation, or religious affiliation.

In general, numerous elements must be present for an act of workplace harassment to get considered. The following are the elements that must be present in any act:

• First, the action must be undesirable or undesired and objectionable to the employee;
• Second, the employee must have raised his or her voice in protest of the behaviour.
• Third, the employee must provide the offending individual or individuals with the opportunity to change their work habits.
• Finally, the alleged behaviour or act must influence the employee’s capacity to carry out his or her responsibilities in an efficient, efficacious, and responsible manner.

What are the Charges to be Faced if the Law is Violated

Failure to comply might result in severe consequences. The PoSH Law has the following provisions:

• When an employer fails to form an internal committee or violates the requirements of this Act or any regulations issued thereunder, they are subject to a fine of fifty thousand rupees (INR 50,000).
• If an employer is previously convicted of an offence punishable under this Act and then commits and gets convicted of the same offence, he will face double the punishment.
• Cancellation or loss of his licence will be the maximum penalty.
• Registration non-renewal or cancellation

Conclusion

The POSH Act’s positive impact as an effective legal remedy for women facing sexual harassment in the workplace is visible in the steadily increasing number of complaints of such cases each year.

As the number of cases reported of sexual harassment at work increased by nearly 54 per cent in 2018 and 14 per cent in 2019, there was some concern among the general public. Still, industry experts point out that this increase in reporting is a positive sign.

It indicates that women are more aware of workplace sexual harassment legislation, as all organisations have implemented the recommendations and provisions outlined in the POSH Act, 2013.

“Women are more willing to report any case of sexual misconduct these days, and it is the responsibility of organisations to act quickly,” said Suresh Tripathi, vice president of Tata Steel’s human resource management.