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What is POSH? Do you have women employees in your business??

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INDIA’S LAW ON PREVENTION OF SEXUAL HARASSMENT AT THE WORKPLACE –

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH ACT)

Companies are committed to provide a healthy and congenial working environment that is conducive to professional growth and encourages equality of opportunity irrespective of gender, caste, creed or social class of the employees.

Any act of sexual harassment will invite serious disciplinary action, as set down in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The law provides that every employer with more than 10 employees must constitute

an Internal Committee (IC) within the organization to handle complaints of Sexual

Harassment.  Every such company is required to have a  policy meant to educate the employees about what conduct constitutes sexual harassment, the ways and means which they are adopting to prevent occurrence of any such event, and in the unlikely chance of such an occurrence,  enable a fair mechanism for dealing with such conduct.

The policy will apply to any woman falling under the definition of ‘Employee’ under the Sexual Harassment Act and encompasses regular, temporary, ad hoc employees, individuals engaged on daily wages basis, either directly or through an agent, domestic help, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employees, whether for remuneration or not, working on voluntary basis or otherwise, whether the terms of employment are express or implied.

Acts that constitute as sexual harassment at work place

  1. Circumstances of promise (implies or explicit) of preferential treatment in employment;
  2. Threat of detrimental treatment in employment;
  3. Threat about employment (present or future);
  4. Creating an intimidating or offensive or hostile work environment, or interference with work for above;
  5. Humiliating treatment that may affect the lady employees’ health or safety;
  6. Unwelcome sexually determined behavior (whether directly or by implication) such as physical contact and advances;
  7. Demand or request for sexual favours, sexually coloured remarks, showing pornography;
  8. Any other unwelcome physical verbal or non-verbal conduct of sexual nature.

The workplace includes:

  1. All offices or other premises where the Company’s business is conducted.
  2. All company-related activities performed at any other site away from the Company’s premises.
  3. Any social, business or other functions where the conduct or comments may have an adverse impact on the workplace or workplace relations.
  4. Places visited by the employees during the course of employment or for reasons arising out of employment-including transportation provided by the employer for the purpose of commuting to and from the place of employment.

 

This POSH Act is only applicable when both or either the alleged harasser & the complainant are employees/agents of the company. It is not applicable when both the alleged harasser & the complainant are third parties.

DEFINITION OF SEXUAL HARASSMENT

Sexual harassment may be one or a series of incidents involving unsolicited and unwelcome sexual advances, requests for sexual favours, or any other verbal or physical conduct of sexual nature. ‘Policy against Sexual Harassment ‘include harassment caused to or by either gender .The following are some basic definitions for reference.

 Sexual Harassment at the workplace includes the following:

  1. Unwelcome sexual advances (verbal, written or physical), demand or request for sexual favours, whether verbal, textual, graphic, electronic or by any other action,
  2. Demand or request for sexual favors in return for a promise of work related favors such as performance appraisals, promotions, transfers, salary increases and employment or any other form of reward or recognition.

iii. Any other type of sexually-oriented conduct, which includes verbal, non-verbal or physical conduct such as obnoxious comments or utterances, remarks or jokes, letters, phone calls, SMS , emails, gestures, showing pornography, stalking, sounds or display of a nature with sexual overtures.

  1. Any conduct that has the purpose or the effect of interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment and/or submission to such conduct is either an explicit or implicit term or condition of employment and /or submission or rejection of the conduct is used as a basis for making employment decisions. Acts of sexual behavior which may arise out of coercion ranging from pressure for personal favors to sexual favor as intrusion into the private lives, etc. or that which may lead to hostile working condition may also be considered as a form of sexual harassment

All employees of the Company have a personal responsibility to ensure that their behavior is not contrary to this policy. All employees are to be  encouraged to reinforce the maintenance of a work environment free from sexual harassment.

LOCAL COMPLAINTS COMMITTEE (LCC)

The District Officer will constitute an LCC in every district so as to enable women in the unorganized sector or small establishments to work in an environment free of sexual harassment.

The LCC will receive complaints from women working in an organization having less

than 10 workers and in cases where the complaint is against the employer himself or the Complaint is from domestic workers.

INTERNAL COMPLAINTS COMMITTEE (ICC):

Every  Company has to constitute an internal Complaints Committee (ICC) for redressal of sexual harassment complaints and for ensuring time bound treatment of such complaints.

The Internal  Complaints Committee is responsible for:

  1. Investigating every formal written complaint of sexual harassment.
  2. Taking appropriate remedial measures to respond to any substantiated allegations of sexual harassment.
  3. Discouraging and preventing employment-related sexual harassment.
  4. Conduct Workshops and awareness programs

The ICC will be headed or presided over by a woman employed a senior level in the Company and not less than half of its members will be women. One member of the ICC will be a representative from an NGO or a person familiar with issues of sexual harassment. The ICC shall prepare a report each calendar year as an annual report and submit to the organization.

PROCEDURES FOR RESOLUTION, SETTLEMENT OR PROSECUTION OF ACTS OF SEXUAL HARASSMENT:

The Company is committed to providing a supportive environment in which to resolve concerns of sexual harassment as under:

  1. The aggrieved employeeshould report in writing, to the ICC . The law allows female employees to request for conciliation to the ICC inorder to settle the matter although a monetary settlement should not be made as a basis of conciliation.
  2. If the conciliation proceedings fail or if no conciliation was requested, the ICC shall conduct an inquiry and complete the same within 90 days from receipt of the complaint.
  3. Within 10 days from the completion of the inquiry the ICC has to publish report with its recommendations.
  4. The employer shall act on the recommendations of the report within 60 days of publication of the report.

There are 3 possible outcomes:

  1. The allegation is proved, and action for misconduct is taken as provided under the service rules of the organization or if the harassment is grave, the organization is bound to inform the relevant authorities to institute penal action under the Indian Penal Code,1860, which has provided special provisions for the crimes relating to sexual harassment.
  2. The allegation is not proved due to the inability of the complainant to prove the facts and in the absence of malicious intent; the organization shall decide not to take any action.
  3. The allegation is not proved and the allegation was made with a “false and malicious” intent, action can be against the complainant for misconduct under the service rules.

An appeal to a court or tribunal is available to the complainant and the alleged against the recommendations of the ICC. The appeal has to be made within 90 days from the date of recommendation.

Protection against retaliation or victimization

Any retaliation against a woman who has complained of sexual harassment or retaliation against any individual for cooperating during an investigation of a sexual harassment complaint should not be encouraged by the company.

Reporting requirements under POSH Law

The IC must also prepare an annual report for submission to the employer and the local labour district office. This mandatory report must include:

  1. Number of cases received and resolved
  2. Number of cases pending for more than 90 days
  3. Actions taken by the employer
  4. Number of workshops or awareness programmes undertaken.

There is also an obligation under the Act for the employer to include this POSH law-related annual report in the company’s annual report.

CORRECTIVE ACTION TO BE TAKEN BY COMPANY

This may include any of the following:

  1. A letter of warning that will be placed in the personal file of the harasser.
  2. Immediate transfer or suspension without pay or both.
  3. Fine equivalent to 2-4 months’ salary that can be credited to a fund created to be utilized for the

welfare of the employees.

  1. Stoppage of increment with or without cumulative effect.
  2. Reduction in level.
  3. Termination/dismissal from the services of the Company.
  4. Any other action that the Disciplinary Authority may deem fit.
  5. Filing a Complaint before the relevant police station.

 

CONSEQUENCE OF NON COMPLIANCE:

 If an employer fails to constitute an IC or does not comply with the requirements prescribed under the POSH Act, a monetary penalty of up to INR 50,000  may be imposed.All offences under POSH Act arenon-cognizable.

CONFIDENTIALITY

The Company should understands that it is difficult for the complainant to come forward with a complaint of sexual harassment and recognizes the complainant’s interest in keeping the matter confidential. To protect the interests of the complainant, the accused person and others who may report incidents of sexual harassment, confidentiality should be maintained throughout any investigatory process to the extent practicable and appropriate under the circumstances.

In case the complaint is found to be false, the Complainant shall, if deemed fit, be made liable to disciplinary action by the Management.

Duties of employers under POSH law

POSH law requires every employer to provide a safe working environment, including:

  1. Displays of the penal consequences of workplace sexual harassment,
  2. Publication of POSH-related policies,
  3. Contact details for the Internal Committee, and;
  4. Delivery of what is (potentially extensive) awareness training.

This range of requirements amongst many other factors have resulted in a relatively slow implementation of POSH within many organisations.

Reports in Economic Times says that Indian companies reported more cases of sexual harassment in FY19 compared to a year earlier. Data from BSE 100 companies, which are required to furnish this information, showed a 14% increase in reports of sexual harassment complaints in FY19. The increase in reportage could point to greater awareness about legislation on sexual harassment at workplace and efforts by companies to make workplace safer for women. The increase in complaints can be attributed to “greater awareness of PoSH law in light of the MeToo movement and the corresponding reputational risk involved for corporates. Companies do not have a choice but to be aware and sensitise employees because the cost they pay otherwise will be heavy.Where companies have had a number of complaints over the years but also showed a declining trend, it would mean that awareness sessions are bearing fruit in terms of behavioural change in employees.

Wipro’s Sexual Harassment Case serves as a Wake Up Call for the Corporates. The allegations against IT giant Wipro of sex discrimination, unequal pay, harassment and unfair dismissal filed by former employee Shreya Ukil lead to more studies and it revealed that a total of 415 cases of sexual harassment  was filed, with 80% of these in information technology (IT) and banking firms. If one goes by the allegations against Wipro, it is simply not a case against an individual but it is against the culture being promoted in the organisation and the lack of women in senior leadership roles to participate in the Internal Complaints Committees (ICCs) as mandated by the law, which further becomes a barrier to keep harassment at check.

A greater number of cases being reported in IT companies mean that female employees are being encouraged to come forward and report such behaviour. However, there are still many who choose not to report given the stigma and fear of isolation attached with it. It is here, where companies need to step in to instil confidence in the female workforce.Making the employee read a code of conduct once  while they join or having a committee in place is simply not enough. A continuous education process coupled with swift action in such cases will be the real effective measures which will ensure that women feel safer at workplaces and can contribute effectively to the ecosystems that they are a part of.

The ministry of women and child development has set up what it calls the Sexual Harassment electronic–Box (SHe-Box), an online complaint system for registration of complaints related to sexual harassment at workplace. This can be used by employees of government and private sectors.

It all began with the Vishaka Judgement

  • In 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage.
  • This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard.
  • Women’s rights activists and lawyers filed a public interest litigation in the Supreme Court under the banner of Vishaka.
  • The Supreme Court for the first time, acknowledged the glaring legislative inadequacy and acknowledged workplace sexual harassment as a human rights violation
  • In framing the Vishaka Guidelines, the Supreme Court placed reliance on the Convention on Elimination of all Forms of Discrimination against Women.
  • As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the Constitution, until such time a legislative framework on the subject has been drawn-up and enacted, would have the effect of law and would have to be mandatorily followed by organizations, both in the private and government sector.
  • As per the Vishaka judgment, ‘Sexual Harassment’ includes such unwelcome sexually determined behavior (whether directly or by implication) as:
  1. Physical contact and advances
  2. A demand or request for sexual favours;
  3. Sexually coloured remarks;
  4. Showing pornography;
  5. Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

Apparel Export Promotion Council v. A.K Chopra

The first case before the Supreme Court after Vishakain this respect was the case of Apparel ExportPromotion Council v. A.K Chopra.

  • In this case,the Supreme Court reiterated the law laiddown in the Vishaka Judgment and upheldthe dismissal of a superior officer of the Delhibased Apparel Export Promotion Councilwho was found guilty of sexually harassing asubordinate female employee at the workplace.
  • In this judgment, the Supreme Court enlargedthe definition of sexual harassment by rulingthat physical contact was not essential forit to amount to an act of sexual harassment.

Later on The Sexual Harassment at Workplace Bill was tabled in the Parliament in 2007. This in turn prompted cases such as Grewal v Vimmi Joshi that emphasized on the stipulations of the bill while delivering judgments related to sexual harassment. However none of them vigorously asked for a bill to be passed, thereby turning a blind eye to the issue. It was finally after 16 years that a bill was passed relating to sexual harassment in India. Recent high profile cases such as the TarunTejpal case, and the allegations against the Supreme Court Judges have brought considerable attention to the problem of sexual harassment in India.

RupanDeol Bajaj vs KPS Gill Case Law

RupanDeol Bajaj vs KPS Gill case was one of the most publicized, high-profile legal cases in India.In this high-profile case, KPS Gill, at the time Director General of Police, Punjab, was held guilty of the charges of molestation.

  • RupanDeol Bajaj was at that time an Officer of the Indian Administrative Service (I.A.S) belonging to the Punjab Cadre.
  • She filed a complaint against KPS Gill, saying that he had molested her modesty by patting her posterior during a party hosted on 18 July 1988 at the Chandigarh residence of then Punjab Financial Commissioner, S L Kapoor.
  • She was at that time working as the Special Secretary, Finance, as an I.A.S. officer. Her husband Mr. B.R. Bajaj, was a senior I.A.S. officer of the Punjab Cadre, had filed a complaint in the Court of the Chief Judicial Magistrate for the same offenses, described above against KPS Gill and was a party to the case.
  • In 2005, the Supreme Court of India upheld the charges and conviction of KPS Gill for the offense.
  • He was spared from undergoing the three-month jail sentence as it was converted into probation by the Punjab and Haryana High Court.
  • KPS Gill was sentenced to pay a fine of Rs 200,000, and be imprisoned rigorously for 3 months and finally to serve 3 years of probation.
  • RupenDeol Bajaj declined to accept the monetary compensation and the court ordered that it be donated to women's organizations.
  • After final appeals before the Supreme Court of India in July 2005 the conviction was upheld and the jail sentences were reduced to probation

Anita Suresh v Union of India &Ors (2019)

The fear of women filing false complaints continues to be one of the principal oppositions to the existence of the law against sexual harassment. Through an analysis of a 2019 high court judgment that ruled a complaint to be “false,” it is to be noted that thesuch cases are one where the complaint could not be supported with evidence permissible to the court. On 9 July 2019, the High Court of Delhi in Anita Suresh v Union of India &Ors (2019), delivered a judgment related to sexual harassment at the workplace.

The brief facts of the case are as follows.

  • In 2011, the petitioner, Anita Suresh, filed a complaint of sexual harassment with her employer, the Employees’ State Insurance Corporation (ESIC), alleging that another employee of the ESIC had made comments indicating sexual advances towards her and made sexually inappropriate remarks.
  • Given that this was prior to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the ESIC constituted an Internal Complaints Committee (ICC) in accordance with the guidelines set out in Vishaka&Ors v State Of Rajasthan &Ors (1997).
  • The ICC heard the complaint, but due to a lack of evidence, it was unable to establish that such behaviour had been exhibited by the respondent.
  • It recommended relocating the petitioner and the respondent, and did not impose any further penalty or instruction on the parties or the ESIC.
  • The petitioner challenged the ICC’s recommendation on grounds that there was sufficient evidence to prove her complaint and that the penalty awarded was insufficient.

 Review by the Delhi High Court

The High Court of Delhi, while hearing the petition, reviewed the ICC’s proceedings and ruled that the petitioner had filed a false complaint. The court does not appear to have gone into the merits of the complaint. Its basis for the ruling was that,

  • When questioned by the ICC, the petitioner could not remember who may have been witness to the sexual advances.
  • Additionally, the court said that none of the people examined at the time reported witnessing any such conduct by the respondent.
  • It also said that the petitioner had not mentioned the exact comments made by the respondent to the ICC.

On these grounds, the court ruled that the complaint appeared to be false and seemed to have been filed with “some ulterior motive.” The court went on to examine the petitioner’s past service record and noted that she had been subject to disciplinary action on work-related issues on two occasions. It is unclear as to why her service record was relevant to the case discussed, but the court devoted significant attention to it.

The court concluded by stating that her writ petition (against the order of the ICC) was without merit and stood dismissed. A monetary penalty was imposed on the petitioner and the respondent was granted the opportunity to initiate action against her for filing a “false complaint.” As is common knowledge, a majority of instances of sexual harassment (whether at the workplace or elsewhere) happen in places or situations where evidence is difficult to come by. In a workplace, sexually coloured remarks and physical advances can be made behind closed doors, where there are no witnesses, no recordings, no video footage, and indeed nothing but the word of the victim against the word of the perpetrator. It is the role of the ICC to find evidence and establish whether the harassment occurred or not.

Under the POSH Act, there is a specific provision inserted to deal with false complaints. Section 14 of the Act specifically states that if the ICC, during the course of the investigation, finds that any complaint has been falsely or maliciously filed, or that any evidence brought before the ICC is false, it can recommend a penalty to be imposed on such person(s). This section was inserted amidst much concern that women are “prone” to misuse rights-based legislations.

Two key provisos had been inserted into the section. First, that the inability to prove a complaint does not render it false. Second, that malicious intent has to be specifically established before disciplinary action is recommended against the complainant. The principle behind these provisos is that no person should be penalised for bringing forward a complaint only because they are unable to prove it.

The judgment, however, is in clear and gross violation of these principles. First, the court disregarded the first proviso to Section 14 and ruled that because the petitioner was unable to produce evidence to support her claim, she must have filed a false complaint. The effect of this ruling is twofold. First, it is a clear derogation from the principle set out in the POSH Act, and second, it has the potential to deter more women (or men) from coming forward with their complaints owing to the fear that a lack of evidence will eventually label them as the wrongdoer. Such acts are rarely something that will have direct witnesses or evidence, and that is what precisely makes it an insidious hindrance in women’s participation in the waged workforce.

Women are given the “freedom” to talk about their experiences, not just on social media, but also through the constitution of a decentralised ICC, which look into complaints of sexual harassment at the workplace. From Section 498A of the Indian Penal Code (which criminalises cruelty towards a woman by her husband or in-laws) to the POSH Act, rights-based laws that seek to safeguard women. These laws exist because violence and discrimination against women are systemic and pervasive in India and across the world.

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