A Gender Sensitive Environment - POSH Compliance

A Gender Sensitive Environment - POSH Compliance
24 July 2019

A Gender Sensitive Environment - POSH Compliance

      As the participation of working women is growing day by day, the laws in our country are also evolving to offer them a sense of involvement with protection. But, that was not always the scenario in our country, women were harassed in the workplace and there was no such law to prevent it or help them get out from it. The word harass can’t be construed in a narrow sense as it includes various other forms of harassment. It includes verbal or physical harassment of a sexual nature. The victims face psychological distress which can often lead to stress, depression and various other psychological problems. To tackle such problems our government under the Ministry of Women and Child development passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This Act then became effective from December 9, 2013. This article talks about POSH, its importance, and compliance. 

      How the act came into Power? 

      The case that proves to be the backbone of the act was Vishakha & Ors Vs. The State of Rajasthan 1997 where Vishakha and other women NGO groups filed a Public Interest Litigation in 1992 against the state of Rajasthan and Union of India to enforce fundamental rights under Articles 14, 19 and 21 of the Constitution of India. This came after Bhanwri Devi an NGO worker was brutally gang-raped for stopping a child marriage in the state of Rajasthan. The petition resulted in various guidelines set by Supreme Court which are popularly known as Vishakha Guidelines. The court held that in the absence of any effective mechanism the Vishakha Guidelines were to be treated as a declaration of law and is applicable until any legislation was enacted by the government. After 16 years of the case, the act was enacted in 2013. 

      What is Sexual Harassment? 

      The term “Sexual Harassment” is difficult to define as it involves a range of conduct towards women. Attempts are continually made Internationally and nationally to define this term in a broader sense. As per the Vishakha judgment, ‘Sexual Harassment’ includes unwelcome sexually determined behaviour (which directly or by implication) as: 

      1. Physical contact and advances. 
      2. A 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 a sexual nature.

      Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing salary or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting and promotion), or when it creates a hostile working environment. Adverse consequences might result if the victim does not consent to the conduct in question or raises any objection thereto. 

      POSH, under Section 3 provides any act or behaviour which may amount to sexual harassment: 

      1. Implied or explicit promise of preferential treatment in her employment. 
      2. The implied or explicit threat of detrimental treatment in her employment. 
      3.  The implied or explicit threat about her present or future employment status. 
      4. Interference with her work or creating an intimidating or offensive or hostile work environment for her.
      5. Humiliating treatment which is likely to affect her health or safety. 

      The definition is very wide here as it provides for implied and explicit conduct. It may mean that an implied behaviour of one person may not be the same for others, so the implied conduct will depend only upon how the other person perceives it. It also includes verbal or non-verbal conduct. Hence, a bare statement can be perceived upon how a person construed a statement. 

        Posh Compliance 

        The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 lays down a list of compliance to be followed by every organization. It includes the Internal Complaints Committee, providing training for awareness of the act and the consequences of not following the act. The act has to be displayed through posters and signage at the workplace. The non-compliance of the act can lead to many fines. 

        The company has to make policy for POSH to promote gender-sensitive workplace which is safe for women. The changes were also made in employment contracts, a specific clause was introduced stating that sexual harassment will not be tolerated and will be considered as misconduct which can lead to various repercussions like termination and deduction of wages, fine, etc. 

        Internal Complaints Committee 

        Under Section 4 of the act, it has been mentioned that every employer of a workplace shall, by an order in writing, constitute an Internal Complaints Committee if it employs 10 or more employees. It shall consist of: 

        1. A presiding officer who shall be a woman at a senior level and if the senior level woman is not available then the presiding officer shall be nominated from other offices or administrative units of the workplace or department or organization. 
        2. Not less than 2 members from the employees who are committed to the cause of women or had social experience and legal knowledge. 
        3. The one-half of the total number should be women. 
        4. All the members will hold office for 3 years from the date of nomination.
        5. The committee will have the powers of civil courts for gathering evidence.

        According to the act, under Section 2(g) the meaning of employer is the head of the department or any person responsible for the management or supervision and control of the workplace or person discharging contractual obligations. 

        Under Section 2(o), the meaning of workplace has been defined as private sector organization / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organization / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey. 

        How to file a complaint and redressal 

        Any aggrieved women or her legal heir on account of her physical or mental capacity or death or otherwise may make, in writing, a complaint of sexual harassment within a period of 3 months from the date of the last incident. Once the complaint is made then any member of the committee shall render all assistance to the woman and if the members are of the opinion that the circumstances were such which prevented the woman from filing a complaint within the given time period then it may extend such time limit not exceeding 3 months. 

        Before initiating any inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation and no monetary settlement shall be made on its basis. If arrived at the settlement then it will be conveyed to the employer. If the aggrieved woman does not consent to conciliation then the committee will inquire into the complaint and interview both the parties. Both the parties will be given a chance to be heard and the committee will complete the inquiry within the 90 days. 

        After the inquiry, the committee will have to prepare a report giving recommendations on the matter in 10 days and has to give the same to the parties and to the employer. The organization will have to work on the recommendations within the given period of 60 days and if any of the aggrieved women are not satisfied with the findings, then she can appeal to the court. Offences under this act are non-cognizable. 

        The relief provided to the victim 

        Under section 12 of the Act during the pending of inquiry, the committee. May recommend to the employer to: 

        1. Transfer the aggrieved woman or the respondent to any other workplace
        2. Grant leave to the aggrieved woman up to a period of three months
        3. Grant such other relief to the aggrieved woman as may be prescribed.

        According to section 15, while determining the compensation, the committee, shall: 

        1. The mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman 
        2. The loss in the career opportunity due to the incident of sexual harassment 
        3. Medical expenses incurred by the victim for physical or psychiatric treatment 
        4. The income and financial status of the respondent
        5. Feasibility of such payment in a lump sum or in instalments. 
        Duties of an employer 

        Under section 19the act says that the employer shall:

        1. Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace 
        2. Display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting. the Internal Committee under subsection (I) of section 4 
        3. Organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act and orientation programs for the members of the Internal Committee in the manner as may be prescribed 
        4. Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry 
        5. Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be 
        6. Make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9 
        7. Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force
        8. 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
        9. Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
        10. Monitor the timely submission of the report by the Internal Committee. 
        Punishment for the non-compliance of the POSH 

        Non-compliance with any of the given section can lead to damages in the form of a monetary fine of Rs. 50,000. On repeating the non-compliance, the employer can be fined double the amount of compensation. It can also lead to cancellation of license, withdrawal or non-renewal of registration of business. 

        In the Indian Penal Code, through the amendment act of 2013, Section 354 was added that talks about the assault or criminal force to woman with intent to outrage her modesty shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both. Employers are obligated to report offences as it’s considered a crime. 

        Amendment of 2018 

        In 2018, the Companies Act was amended where it has specified to incorporate a testament disclosing their compliance with the provisions relating to the constitution of an ICC under the POSH Act which shall be included in the Board of Directors report, that shall be prepared under the provisions of Section 134 of the companies Act Rules. 

        The amendment in Rule 8 and 9, requires to include the matters of POSH in the director’s statement, which forms the part of the annual report. It will lead to the imposition of fine which is not less than 50,000 INR but which can extend to 25 Lakhs and imprisonment.