This article is written by Shreya Gosavi, pursuing a Diploma in Business Laws for In-House Counsels from LawSikho.
Sexual Harassment in the workplace on women has always been in existence but it was unfortunate that we did not have any specific legislation in this area until 2013. The need for specific legislation was addressed by the Supreme Court in the case of Vishaka & Ors. vs. State of Rajasthan (AIR 1997 SC 3011). The case had recognized that:
- Every profession, occupation or trade should provide a safe working environment for employees and shouldn’t hamper the basic right to life and right to dignity.
- Women should have the fundamental right towards freedom for sexual harassment at the workplace.
- The main objective is to give dignity and respect to both men and women at their workplace.
- The guidelines and implementation towards the sexual harassment towards women in the workplace.
And this led to the enforcement of the “Sexual Harassment Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” also known as the Sexual Harassment Prevention Act. This was enacted by the Parliament. The Act came into existence in December 2013 under the Ministry of Women and Children’s Department. In this article, we will understand the objectives and important provisions of the Act, the functioning of the Internal Complaints Committee and how are sexual harassment policies drafted and complied with in an organization.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013
The objective of the act is as follows:
- To protect women against sexual harassment at the workplace.
- To provide a safe environment to women in the workplace.
- To regulate the misconduct of the employee in the workplace.
- To create awareness to prevent from occurring such activity.
- Every kind of organization, unorganized, public or private which consist of more than 10 employees.
- The policy applies to all the employer/ employee irrespective of gender or position in the organization.
Sexual harassment in the workplace:
- Demand or request for sexual conduct;
- Showing pornography;
- Making sexual coloured remarks;
- Any other physical, verbal, or non-verbal communication by any kind person working in the organization.
- Primary workplace: The registered address of the company.
- Extended workplace: If any employee is traveling related to work the place can be included in the workplace.
- Virtual workplace: Due to lockdown work from home is a new aspect that is now being familiar to all.
- Work event: The events/parties conducted by the company can be named workplace.
- Any woman who is a victim or her legal heir can file a complaint with the Internal complaint committee.
- As per the recent judgment of Calcutta High Court, a complainant can file a case against the same gender as well under section 2(m) of the act. It means that the word respondent would not be limited to any particular gender.
- Can be anyone whether or not getting remuneration from the organization.
- Even the domestic help can complain under this act but only the authority to complain may differ.
Internal Complaints Committee (ICC)
Every organization is bound to set an independent body that is solely responsible to look after the matters relating to sexual harassment in the workplace which is called as Internal Complaints Committee (ICC) who performs its duty as per the Prevention of Sexual Harassment at workplace Act, 2013.
The Internal Complaint Committee consists of:
Women working at senior level as employee; if not available then nominated from other office/units/ department/ workplace of the same employer.
2 Members (minimum)
From amongst employees committed to the cause of women/ having legal knowledge/experience in social work.
From amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment.
- The minimum number of total members should be four as per the legislation.
- Around 50% of the women should be included in the committee.
- The main authority of the committee should have to be women who are Independent Counsel and has dealt with Sexual Harassment cases; or
- Any NGO that is mainly looking into women and children cases; and
- The rest of the remaining members are internal members of the organization.
The functions of ICC members are as follows:
- To conduct a free and fair trial.
- To pass an unbiased and independent judgement.
- To conduct sensitization training once a year or quarterly.
- The procedure is well documented, available, and accessible formats.
- Assistance is provided in the form of language interpreters as needed for parties to a complaint.
- Ensuring the process is confidential, independent, and based on principles of natural justice.
- Ensuring the process has clear timelines.
- All conflicts of interest are managed appropriately.
Checklist for drafting policy
To create awareness and prevent employees from being sexually harassed a Sexual Harassment Policy needs to be drafted by the ICC members and update at regular intervals. Following are the checklists to be remembered while drafting the policy.
CREATION OF AN ANTI-SEXUAL HARASSMENT POLICY
- Whether the policy is prepared or implemented as per the norms prescribed in the act Anti- Sexual Harassment of Women at the Workplace (Prevention, Prohibition and redressed Act, 2013?
- Whether the policy is updated as per the current scenario of work from home and clearly defines the virtual workplace in the policy?
- Whether the policy mentions strict action against the accused?
INTERNAL COMPLAINT COMMITTEE
- Every branch of the organization has more than 10 employees who have set up such a committee or not?
- Recruitment of 50% of women is compulsory as per the act out of total 4 members in the committee.
- Independent counsel / NGO who looks into such sexual harassment offences and has adequate experience in handling such cases to be also involved in giving best order by the committee and are given special preference in the committee or not?
- The committee conducting such session as per the prescribed law and as per the Anti sexual harassment policy.
- The report of the committee being annexed with the Annual Report or not?
- Are there any safeguards for the ICC members?
- The training-online (due to current situation) or offline is conducted for all the employees irrespective of job profile or gender by the committee.
- The awareness being spread about the act and how it is still applicable in the current work from home scenario.
- Such training is conducted within the organization at least every quarterly or on yearly basis through zoom call in the current situation.
- The notice/posters by the committee being pasted at conspicuous places creating awareness about the act or not?
- During the virtual workplace, the employees being mailed or sending a text message to the prescribed contact address of the employee such things are done or not?
RESPONSIBILITY OF ORGANIZATION
- The organization to be given all kinds of support to the victim in the case and looking after the ICC conducting a fair trial.
- If the victim wants to proceed to file a criminal case then the organization can bring support for the same.
- Is the authority in the organization monitoring the ICC committee?
- Is the policy prescribed is being implemented as per the act?
Provision of Information Technology Act (IT Act)
Due to the work from home scenario, there was a need to insert IT Act provision in the policy. So along with the Posh Act, IT Act will also be applicable.
- Whether privacy should be protected for every individual?
- The definition of workplace to include all social media sites.
Annual Compliance Report
The Annual Compliance Report is the report created by the ICC/Employer of the company.
Offline mode of submission
It should be submitted to the District Officer along with the cover letter and also an Annual Report of the company to the district officer via post as per act (offline).
Contents of the Report
Contents to be mentioned in the Annual Report:
- No. of complaints received;
- No. of complaints disposed of;
- No. of cases pending for more than 90 days;
- No. of workshops/awareness programmes carried out;
- Nature of action taken by the employer/District Officer.
The Report of the ICC will be forwarded to the District Officer through the employee.
- Section-19: It deals with employers duty.
- Section 20: It deals with District Officer’s duties.
- Section 21: The Internal Complaint Committee (ICC) & Local Complaint Committee (LCC) are required to maintain and submit the Annual Report.
- Section 22: It deals with the submission of certain details by the employer to the District Officer, in certain circumstances.
Online mode of submission
Online submission is available for Telangana, Nodia, Greater Nodia only.
Non-Compliance of Report
The Non-Compliances of the ICC of the company can be liable of Rs. 50,000/- (Rupees Fifty Thousand only) on or before end of every year. Due to the penalty added which led to receiving a report daily to the authority and hence increased the burden of the department said by Additional Deputy Commissioner Vinay Pratap Singh.
Internal Committee is exclusively set up to hear sexual harassment cases in the organization. The order passed by the committee is absolute and cannot be appealed.
Even after reporting to ICC the complaint if not addressed then the complainant can file a case. The jurisdiction of such cases are covered under Industrial court.
- SHE BOX
If the complainant gets the complaint rejected by the company, the complainant can write to SHE Box. It is an online complainant management system initiative by the Government of India (Ministry of Women and Child Development) is a single-window for all the women who have been victim to sexual harassment in the workplace can register their complainant through this website.
Challenges under the Act
- Problem faced by the ICC
The members of ICC are employees of the organization, the lack of safeguards hinders the working of ICC to act without fear and bias. Although the ICC has the powers of a civil court, the members of such committees have not been provided with any safeguards. This creates a highly unjust situation for ICC members as well as the parties to the case. This acts as a barrier to address the issue of sexual harassment at the workplace.
- Problem faced by complainant while filing complaint
As per the Indian laws the evidence needs to be provided to prove the facts of the case either written, oral, or any witness who could approve the facts of the case. But in the case of sexual harassment, the evidence may lack as the incident occurs in private and no such witness is present at that moment.
- To prevent any kind of defamation or embracement the complainant withdraws the case or rather avoids filing a case.
- The act doesn’t provide provision to address the complainant as anonymous. The complainant does not want to get identified.
The act ensures giving protection to women in the workplace and providing equal status to both men and women for which an Internal Complaint Committee is set up to fulfill the objectives of the act. Apart from this, there are different mediums to get a complainant by filing a complaint to the court or getting the complainant registered on the SHE Box website. The company prepares a policy that is the source of making the employer/employee aware of the POSH Act.
In my opinion, due to increasing mental issues, martial issues, or several other kinds of behavior might reduce the chances of women to take their cases in front of appropriate authorities. Apart from that, psychologists should be made a part of the panel of ICC in order to keep a tap on the mental health of the employers/ employee. The instances of sexual harassment will only come to an end with the proper compliance of the policies and efficiency in the working of the grievance redressal systems.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: