POSH- A Mandate Obligation

Introduction:

In the 21st century, we witness that men are not only the breadwinner for their family; the women of the family can also be the head of the family. The society has become progressive enough to promote gender equality in workplaces. In order to promote the same and to protect the women from harassment in the workplace, the government has enacted an act called as Prevention of Sexual Harassment Act (POSH) in the year 2013. Since then, it’s become mandatory for every employer to have a workplace where women work, to comply with the provisions of the above-mentioned act.

What is considered sexual harassment?

An act done by a person, either directly or through any implication, considered as sexual harassment, when it falls in one of the circumstances mentioned below:

• When one demands physical contact and advances; or
• When one demands or request sexual favors; or
• When shows pornography; or
• When makes sexually colored remarks; or
• When one does any other unwelcome physical, verbal or non-verbal conduct of sexual nature; or
• When makes the explicit or implied promise of preferential treatment in her employment; or
• When makes any threat of detrimental treatment in her employment; or
• When makes any threat to her existing or future employment status; or
• When one interfere with her work or create an environment which is intimidating, hostile or offensive; or
• When one treats her in a humiliating manner which likely to affect her health or safety.

Who has to comply?

Since this act intends to protect working women, therefore all the employers have to comply with this act. Now the question arises, who falls under the category of an employer?

As per the act, any person who is the head of the department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit of the appropriate government or a local authority, shall be considered as an employer for the compliance of this Act.

If your workplace does not fall in the above-mentioned paragraph, then any person who is responsible for management, supervision, or control of such a workplace, shall be considered an employer.

What one has to do?

When you are an employer as mentioned in the above heading, you have to by way of an order in writing, form a committee called ‘Internal Complaints Committee’ (further referred to as IC). If your workplace has different units or offices or branches, then IC has to be formed at every unit, office, and branch.

The IC shall consist of the following members:

• A Presiding officer, who shall be women employed at a senior level in your workplace;
• Two members from your employees who are committed towards the cause of women or have experience in social work or have legal knowledge;
• One member from NGO or such associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

The employer further has to ensure that these members are duly nominated by the employer and half of the total members so nominated are women.

Who can file a complaint under this act?

This law intends to protect women only; it does not apply to any male victim. So the persons who can entitle to file a complaint under this act are Aggrieved Women, irrespective of their age and employment.

Who is an aggrieved woman?

An aggrieved woman is one who alleges to have been subjected to any act of sexual harassment by the other person. She can be a person who either works in the said workplace or visiting such a workplace or is a student. She can be a domestic worker, a regular or temporary employee, an ad-hoc, or a daily wager. She may be employed on a remuneration basis or a voluntary basis or otherwise. She can be employed either directly or through an agent.  She can be a contract worker, or on probation, or a trainee or an apprentice of the workplace. She has to make a complaint, in writing to IC within 3 months of the last incident. But it is not necessary that she herself has to file a complaint. Any person on her behalf may file a complaint if she is physically or mentally incapable to do so.

What happens when one file a complaint?

Upon receiving such complaint, IC shall within 7 days inform, the other person, against whom such complaint is filed by way of supplying a copy of the complaint. On receipt of the copy of the complaint, the other party shall reply to the ICC with all supporting documents. Then IC shall conduct an inquiry-based on such complaint which is to be completed within 90 days. Then it is the duty of the employer to comply with the recommendations given by IC within 60 days from the date of completion of inquiry.

What are the consequences when one does not comply?

If being an employer, you do not comply with the provision of this act or fails to form an Internal Complaints Committee, then a fine of Rs. 50,000 may be imposed upon you. On repeating the same offence, you could face a double penalty or even de-registration of your workplace.

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