This Article is written by Dr. Rattan pursuing Certificate Course in Prevention of Sexual Harassment at the Workplace from LawSikho as part of his course work.

It is essential to understand the various facets of genesis and functioning of the External Member before enumerating the steps required to become an External Member of the Internal Complaints Committee (ICC).

Who is an external member?

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (Sexual Harassment Act) was notified in December 2013 in India. To redress the complaints of sexual harassment at the workplace, it is mandatory to constitute an ICC in workplaces where there are 10 or more employees as per Section 4 of the Act. There has to be a minimum of four members nominated for the ICC and of this half of the members must be women. ICC is now called as Internal Committee (IC), capturing its role beyond only addressing the complaints. [1]

The employer has to nominate the following members

• A woman presiding officer who has to be a senior officer from amongst the employees.
• Two or more members from the employees who are committed to the cause of women or who have had experience in social work or have the legal knowledge.
• One external member from a non-government organization or an organization committed to the cause of women.
• At least half of the members shall be women, at all times.

As a practical suggestion, it is desirable to have three or an odd number of employee members to avoid a situation where, at the end of the inquiry, the committee is evenly divided in its opinion on the findings of the charges presented before it.

Penalty for non-constitution of ICC or not complying with regulations

If an employer/organization fails to constitute an ICC or does not comply with the requirements prescribed under the Act such as non-inclusion of a proper External Member, a penalty of up to Indian rupees 50,000/- can be imposed.  Non-correction of the offence could result in the punishment being doubled and/or de-registration of the entity or revocation of any statutory business licenses as per Section 26 of the Act. All offences, however, under the Act are non-cognizable as per  Section 27 of the POSH Act.

Eligibility to become an External Member

Section 4 Subsection (2) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 makes it mandatory for the appointment of an external member to the Internal Complaints Committee. It outlines that the External Member should be a person from an NGO committed to the cause of Women OR a person familiar with issues related to Sexual Harassment It could also be a person with a legal background having some expertise in the matter.

How do organisations choose an external member?

It requires serious consideration before engaging an outsider as a member of ICC. The engaging Institution must in the first place understand what to expect from the External Member of the ICC. It is important to verify their past legal record amongst other credentials. Choose someone who has experience in dealing with sexual harassment issues. Try to ascertain that the member has the reputation to act as neutral and unbiased. He should have knowledge and experience of the Act. Responding effectively to workplace sexual harassment complaints is an ethically, legally and morally demanding task. To live up to these demands, an external member on the ICC should possess the following qualities:

• Knowledge, skill and capacity in dealing with workplace sexual harassment issues/complaints
• Sound understanding and practice of the legal aspects/implications.
• Such expertise will facilitate the smooth working of ICC in terms of fair and informed handling of complaints, which would not only be sound and just but should also be perceived in the same way by all concerned stakeholders.

Is there a gender specified for an external member?

No. Any individual meeting required qualifications could act as External Member. Most organizations are however comfortable, having a woman as an External Member. It is a common misconception that the External member must be from an NGO and should be a woman. With the increasing awareness about the creation of ICCs, the availability of external members who meet the eligibility criteria under the Act is shrinking rather than enlarging. This is more so for the organizations located in smaller cities.

What are the grey areas related to external member functioning in ICC?

• Neither the Act nor the Rules framed under the Act elaborate on what qualifies as being ‘familiar with issues relating to sexual harassment’ or ‘committed to the cause of women.’
• The regulatory framework also does not prescribe any prior experience or other qualifications required of the person selected from a non-governmental organization or association to serve as an external member of the ICC.
• Another point requiring clarity is regarding extending the term of an existing member of the ICC to beyond three years?
• What happens to complaints that are being investigated by the existing ICC and likely continue?  Can an External member continue beyond its stipulated period to complete the incomplete investigations?
• Organizations are normally reluctant to include external members to so-called sensitive committees. If pushed to the wall, they include someone closer to the organization who as per the Act may not be the right candidate.

Who cannot be an external member?

• An individual cannot act as an External member of an ICC, if he/she has been convicted of an offence or an inquiry is pending against or is found guilty in disciplinary proceedings or a disciplinary proceeding is pending against him.

What is the expected role of the external member?

• The external member of the ICC is expected to act as a neutral, impartial and expert member in order to facilitate and expedite inquiries and follow up actions. Inclusion of an external member brings a degree of objectivity and outside perspective in the working of the ICC and provides the complainant with the assurance of an inquiry mechanism, which is objective, neutral and not influenced from possible pressures from the employer.
• An external member would be able to gain the trust and confidence of the employees and should be accessed without any hesitation by the employees. He is expected not to hush the grievances and putting it under the carpet.

Do you need to pay a fee to be given to the external Member?

• The External Member is entitled to receive a prescribed fee to carry out his/her functions.
• The External  Member is entitled to a minimum allowance of two hundred rupees per day for holding the proceedings of the Internal Committee and also the reimbursement of travel cost incurred in travelling by train in three tier air-conditioned or air-conditioned bus and auto rickshaw or taxi, or the actual amount spent by him on travel, whichever is less. However, organizations can pay more than the minimum recommended fee.

Can the ICC meeting take place without the presence of the external member?

As per the rules under the Act quorum of three members is required to be present for the proceedings to take place. The quorum shall include the Presiding Officer and at least two members; one of them shall be a woman.

Neither the Act nor the rules framed there under make it mandatory for External member to attend the ICC meetings. External member can participate in person or through video conferencing or similar technological aids. Though the quorum of the ICC meeting is complete when three of the four members are present, but if the two members other than the Presiding Officer are male, it does not meet the quorum requirements in letter and spirit.

What is the term of the external member in the ICC?

The term of the members of the IC is three years. However, a member can be removed before the completion of the term if he/she is found guilty in any disciplinary proceedings, abused  his/her position, convicted of an offence or has pending proceedings ,discloses/publishes any information related to the aggrieved woman, respondent or the witness in a sexual harassment case at the workplace. The Act is silent on a possible extension of tenure beyond three years if required to complete the unfinished work.

What is the role of an external member in the capacity building of ICC?

Every employer is also required to ensure that the nominated ICC members are adequately trained and have a good level of understanding with regard to the requirements under Sexual Harassment of Women at Workplace Act, 2013. The expertise of the external member would be very useful to meet this objective, as the external member is expected to already have a working understanding of issues relating to sexual harassment as well as the specific needs of the organization. This opportunity also becomes financially attractive for the external member to be associated with the organization.

External member for the training of employees

Periodic sensitization/training of the employees related to various aspects of the Act is one of the compliance requirement by the management who often find it difficult to locate credible and affordable trainers for this purpose. An efficient way to have employee sensitization done is by involving the external member of the ICC. It saves the organization from unnecessary wastage of resources by having to find a separate trainer, who normally ask for an exorbitant fee, to perform this function.

The external member would already have prior knowledge and understanding of the environment in the organization, which would play an important role in the employee sensitization, as they would also know which issues require prioritization during training. The management would also prefer having a person who is already informed about the manner in which the organization works, to be the one conducting the employee sensitization sessions.

This should, however not interfere with his/her impartial and neutral contributions to the ICC proceedings and employees should continue to perceive his/her presence as a neutral member of the ICC.

Facilitating with management for compliance of the Act

The external member, on whom the management would have a certain level of trust, would be able to explain the importance of compliance and ensure that the management works in functional consonance with the ICC. The external member would also play a significant role in changing the perception of the management towards such issues from being reactive to being preventive and proactive.

Consequences of not engaging the right fit external member

The consequences of not choosing the appropriate external member, who meets the requirements of the Act, are very serious. It invalidates the very existence of the ICC and the proceedings conducted thereof. A judgement by the Delhi high court in Ruchika Singh Chhabra vs M/S. Air France India And Anr in May 2018 asked for reconstitution of ICC based on the external member not having relevant experience in dealing with matters of sexual harassment. This underlines the importance of well searched right selection of an External Member.

To Conclude: Steps required to become an external member Of ICC

• Ensure that you meet the eligibility criteria as defined under the Act.
• Acquire the desired training/skills and experience of working with an ICC.
• To be visible, contribute articles/discussions/comments on the  Act related discussions on the internet for the purpose of networking.
• Once contacted by any organization for appointment as External member of ICC provide all the relevant information truthfully.
• Obtain the background of the Organization approaching for an appointment and be familiar with the working of the organization and workplace culture.
• On acceptance of the role of an External member of ICC, conduct Orientation programme for the members of the ICC and assist the Employer in conducting awareness training for all the employees.
• Ensure total compliance of the Organization with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• Be gender neutral and do not have any gender biases.
• Assist the ICC in conducting the Inquiry if/when there is a complaint.
• Assist in recording the minutes of the regular meetings and Annual Report of the organization.
• Give appropriate advice as and when called for to the members of the ICC and to any employee who has approached.
• Be actively involved with all the ICC proceedings and ensure that the proceedings are happening according to the principles of natural justice.
• Facilitate restoration of the workplace harmony in case of sexual harassment incidents.
• Provide the complainant with the assurance of an inquiry mechanism, which is objective, neutral and well shielded from possible influence by the employer.

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.

References

[1] As per the Repealing and Amending Act, 2016, the nomenclature of the Internal  Complaints Committee was changed to the Internal Committee.