Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) ACT, 2013 (POSH Act)

  1. BACKGROUND

1.1 The POSH Act was enacted after 16 years of the Supreme Court judgment in the case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997 (7) SCC 323) wherein it was held that sexual harassment at workplace is violative of the constitutional rights of women including the right to equality and the freedom to practise any profession with dignity.

1.2 In order to protect women and provide a safe working environment, the POSH Act was enacted by the Ministry of Women and Child Welfare in the year 2013. These laws are applicable to companies including multi-national companies, firms, shops, restaurants and all workplaces and establishments employing 10 or more employee irrespective of the location or the type of industry.

  1. SEXUAL HARASSMENT

2.1 As per section 2(n) of the POSH Act, Sexual Harassment is defined as follows:
“Sexual Harassment includes any one or more of the following acts or behaviour:
i. Physical contact and advances; or
ii. A demand or request for sexual favours; or
iii. Making sexually coloured remarks; or
iv. Showing pornography; or
v. Any other unwelcome physical, verbal or non- verbal conduct of sexual nature.”

2.2 Section 3(1) of the POSH Act provides that no woman shall be subjected to Sexual Harassment at any workplace. Section 3(2) lists out following circumstances that would also amount to Sexual Harassment.
i. Implied or explicit promise of preferential treatment in her employment;
ii. Implied or explicit threat of detrimental treatment in her employment Implied or explicit threat about her present or future employment status;
iii. Interference with her work or creating an intimidating or offensive or hostile work environment for her; and
iv. Humiliating treatment likely to affect her health or safety.

  1. REDRESSAL FORUMS

3.1 One the most important feature of the POSH Act is to set up redressal committees to hear complaints relating to Sexual Harassment.

3.2 Internal Committee (“IC”): Each work environment having 10 or more employees should mandatorily set up an IC. At least half of the IC members must be women. The IC must direct the organisation to implement provisions of the POSH Act including setting up the necessary framework for redressal of complaints relating to Sexual Harassment of women. Typically, the IC will comprise of the following members:
i. A senior level women employee as the presiding officer;
ii. At least two employees committed to uphold women’s rights or who have had experience in social work or have legal knowledge; and
iii. One independent member from an NGO or an affiliation committed to women’s welfare or acquainted with issues of sexual harassment.

3.3 In the event an organisation has different offices, then each office having 10 or more employees should set up an IC to deal with complaints of Sexual Harassment against women.

3.4 The POSH Act has accorded the status of a Civil Court to the IC and the IC is empowered to summon or enforce the attendance of any person or order the production of documents.

  1. PROCUDURE REGARDING COMPLAINT

4.1 As per provision of section 9(1) of the POSH Act, any aggrieved woman may make a complaint of Sexual Harassment at workplace in writing to the IC, if constituted, or to the Local Committee established by the local Government district officer, within a period of three months from the date of incident.

4.2 Pursuant to a request made by the aggrieved woman, conciliation process to settle the matter can be initiated between the parties. However, no monetary settlement is allowed under the POSSH Act on the basis of conciliation.

4.3 Upon receiving a complaint, the IC or the Local Committee must proceed to make inquiry into the complaint, in accordance with the provisions of the POSH Act, within a period of 90 Days.

4.4 Interim relief: The IC is empowered to grant interim reliefs to the aggrieved women during the pendency of the inquiry. The IC may recommend any of the following interim reliefs:
i. Transfer the complainant or the respondent to any other workplace;
ii. Grant leave to the aggrieved woman for up to three months in addition to her entitled leave;
iii. Restrain the respondent from reporting on the work performance or writing any confidential report in relation to the aggrieved woman; or
iv. Restrain the respondent from supervising the work of the aggrieved woman.

  1. Reporting requirements
    5.1 The IC must prepare and submit an annual report to the employer. The annual report must provide the following information:
    i. Number of complaints of sexual harassment received in the year;
    ii. Number of complaints disposed of during the year;
    iii. Number of cases pending for more than 90 days;
    iv. Nature of action(s) taken by the employer; and
    v. Number of workshops or awareness programs conducted against sexual harassment.

5.2 The IC must send the annual report to the employer and the local Government district officer. Failure to submit the annual report will attract the same penalty as applicable in the event of failure to constitute the IC.

Disclaimer: Please note that the contents of this note are not meant to be a substitute for obtaining legal advice. This note is only an introduction and we urge you to consult your lawyers for specific advice.

Disclaimer

Please note that the contents of this note are for general information purposes and not meant to be a substitute for obtaining legal advice. This note is only a brief introduction, which may not be up to date and we urge you to consult your lawyers for specific advice.

Categories: Employment

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