This webinar summary is written by Anubhav Verma, Hidayatullah National Law University, Raipur.

The Speaker – Dr. Sandya Advani (She has a degree in Ayurveda and a Masters in Law. She is the founder and the principal consultant of POSHsystems.com, which works in the area of POSH compliance and training. She has trained over forty-five hundred people,

The Host – Ms. Priyanka Karwa, Head of Customer Success at LawSikho.

The speaker introduces the topic. The speaker is going to speak on the role of the support services in implementing Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) POSH Act. Section 19 and 20 of the POSH Act speak about the duties of the employee. She will explain how the various support services like H.R. and I.T. can contribute towards protecting your business reputation by implementing the provisions of the POSH Act. The safer the workplace, the lesser are the chances of any kind of complaints coming in. The speaker then explains the structure of the session.

First, we will look at what the act says about the responsibilities of the employer. Next, we will step down and we will see which department it falls under, which supports service, would help to take care of that responsibility. Then we will look at what each of them can individually do to make things effective. And after that, we will check what is used to prevent and redress the complaints. And then after that, we will talk about the price of non-compliance and we will ask you to talk about what information you could share and what you could not share. 

The speaker lists certain situations.

Situation 1

A visitor comes to the office during the meeting with a woman employee, he tries to come too close and give her a hug. The woman manages to escape and then the visitor leaves. Obviously, she’s upset. So she filed a complaint with the IC. IC asks for the details of the visitor. Now, when the admin person checks in that a visitor register kept near the reception, He finds that only the name and the mobile number is there and the number is found to be switched off. And there is no other information available at the security office. And CCTV is found to be not working. So how will an admin professional provide information in such a scenario? So one of the responsibilities of the employer under the act is to provide information to the IC. Now here there is no information available. So what does an employer do or what does an admin person do? We can have situations which may come or which we may come across, which are in this manner.

Situation 2

In a BPO, the company provides a drop at night. The driver misbehaves with the woman employed by passing sexually coloured remarks. The employee lodges a complaint. After the company checks, they get very less information. They get an address of a rented place where the man no longer lives. They have an old photograph and beyond that, there is no information available. We can come across situations of this sort. What do we do? How do we provide the information? 

We are now going to see what are the responsibilities of the employer which are provided under the act and thereafter we will see what it actually means.

The first responsibility is to provide a safe working environment in the workplace, which includes safety from the persons coming into contact at the workplace. Primarily, the responsibility of the employer is to provide a safe working environment. It means safety from visitors, from people who are coming into the office or the organization. 

The second responsibility is to indicate on a clearly conspicuous place in the workplace, the consequences of sexual harassment and the order for instituting the internal committee. One needs to put up posters which show the stance of the organization that is zero tolerance to sexual harassment. 

The next responsibility is to conduct the orientation programs within the company. This talks about providing periodic training on the employees and skill-building of the internal committee. Employees need to be made aware of the consequences of sexual harassment.

There is also a responsibility of the employer to provide all necessary facilities to the Internal Committee to deal with the complaint and to ensure the attendance of the witnesses and the respondent in front of the IC. The employer needs to provide assistance to the complainant to file the complaint and help her to initiate a complaint under the IPC if she desires. The employer also needs to monitor the status of the complaint from time to time. The employer needs to indicate the number of cases filed in the annual report of the organization.

The speaker indicated the responsibilities of specific departments in the following table – 

How can the employer ensure safe working conditions?

An employer can ensure safe working conditions by ensuring – 

• Security of Building 
• Adequate lighting in building, compound, parking area 
• CCTVs near Entry into Building 
• CCTV in lift 
• Security at the entry of office 
• Visitor management system 
• Access Control systems 
• Meeting room Infrastructure- glass partitions 
• Workstations with modesty panel 
• CCTV in office- especially passages 
• Review of CCTV footage by Security
• Escalation to Admin if anything untoward is noticed

What HR policies can a company adopt to ensure a safe working environment?

• Employee friendly policies — No late sitting 
• A policy with respect to dating 
• Policy for Security escort for the home drop when leaving late 
• The policy drafted to work from home after office hours/holidays
• To coordinate with IT to ensure laptops provided to key employees to enable them to work from home

What other steps can be taken by HR and the administration?

HR can ensure that background checks of the employees are done before hiring. The companies can ensure putting clauses related to the prevention of sexual harassment in vendor and client contracts. The administration needs to ensure the compliance of the provisions by the vendors and the clients. There also needs to be an overview of the documents related to employee details from time to time.

What initiatives can be taken by the IT Department?

• Create a dedicated email ID for the IC 
• Allocate dedicated server space — password-protected for use of IC to store confidential documents relating to complaints
• Block access to porn sites/dating sites 
• Install a firewall for better security
• Put up triggers to alert use of certain words in mails or office communications 
• Keep track of CCTV backups
• Provide support in terms of IT infrastructure for employees working from home

What are the steps that can be taken towards ensuring prohibition of the acts of sexual harassment at the workplace?

• Displaying of Posters
• Providing Logistical support to the conduction of training and workshops
• Enforcing an anti-sexual harassment policy
• Ensuring an anti-sexual harassment clause in the vendor and client agreements

What are the steps that can be taken towards redressal of the acts of sexual harassment at the workplace?

• Providing the required information to the Internal Committee
• Providing logistical support to the meetings and the inquiry
• Ensure the attendance of the respondent and the witnesses in the inquiry

Punishment for Non-Compliance

Section 26 of the POSH Act specifies the penalties for the non-compliance of the provisions of the act.

It says that – 

Penalty for non-compliance with provisions of Act.

1.   Where the employer fails to-
2.   constitute an Internal Committee under sub-section (1) of section 4;
3.   take action under sections 13, 14 and 22; and
4.   contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made there under, he shall be punishable with fine which may extend to fifty thousand rupees.

The speaker then explains using some real-life examples

She mentioned a case in Indore. In it, Medanta Hospital, Indore was held guilty of not addressing a female employee’s case of sexual harassment, the Madhya Pradesh High Court has directed the hospital to pay a compensation of Rs 25 lakh to the victim. The court further directed the hospital to pay a penalty of Rs 50,000 on account of not having a mandatory Internal Complaints Committee under the law of the land.

Section 26(2) says that, if any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to- twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:

Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

The court will also ensure the cancellation, of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

What information can be shared and what is not to be shared?

Section 16 of the POSH Act mentioned about this. It says that –

Prohibition of publication or making known contents of complaint and inquiry proceedings.—Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

The employer and the witnesses are bound by confidentiality in case of a complaint.

The justice given to the victim can be shared without disclosing the identity of the victim and the punishment.

Information that cannot be shared 

• Contents of the complaint 
• Identity and address of complainant, Respondent and witnesses 
• Information relating to reconciliation and inquiry 
• Recommendations of the IC/LC 
• Action taken by the Employer/District officer

Questions by audience The speaker now starts taking questions,

One viewer asks, Ccan the employers prohibit the employees from dating?

The employer can’t prohibit dating but the employees need to get into the notice of the HR.

What remedy does one have wherein the employer promises to speak to such offender, assures the aggrieved and thereafter the aggrieved comes to realize that no action has been taken?

The complaint needs to be filed in the internal committee. The promises to take actions hold no value.

How to ensure that no false complaints are filed?

The employer can ensure the use of equipments such as CCTV camera and they can keep each process well documented. This will ensure that evidence is present to support a person who is falsely accused of such a crime.

Where should an employee complain if there is no IC and there are less than 10 employees in the company?

The employee can complain in the local committee in such cases. She can also file a case under the IPC,

What to do if witnesses are from other companies and they refuse to come?

The company can talk with the IC of the other company but they can’t face them. 

If any company reveals the details of the complaint to others, then what actions can be taken?

The complainant can initiate a complaint against the person disclosing it because the confidentiality clause is violated.

What actions can be taken against the act of sexual harassment against men?

The laws against sexual harassment are gender-neutral. The complainant can take action as the violation of code of conduct.

How will the IC decide the case when the sexual harassment has taken place on a public road where no CCTV and there is no public on the road?

If it is a stray case outside the workplace, then actions will be taken under the IPC.

If a woman is threatened for filing the complaint, then what can she do?

The woman must gather all the evidence and then file the complaint against the manager threatening her.

Can the complainant get the information about the complaint under the RTI Act?

RTI Act is not available in such cases.

How to form the IC in the company?

The guidelines are given under Section 4 of the POSH Act.

How can a man file a complaint against sexual harassment?

The same procedure is followed as in case of a woman.

The session ends with greetings.

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