What is PoSH (Prevention of Sexual Harassment)?
In 2013, the Indian Government in a remarkable attempt to prepare a safer and more welcoming work environment for women employees implemented the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and its rules known as the PoSH Rules.
Is PoSH applicable to Small & Medium Enterprises (SMEs)?
Small & Medium Enterprise sector has been continuously playing an extremely significant role in reinforcing country’s economic progress as well as its international standing. The sector has been instrumental in creating millions of jobs, promoting industrial development in rural areas, production of diverse range of products with the limited capital investment. However, no enterprise can progress unless and until its women employees are protected and their rights are safeguarded inside the organization.
PoSH is relevant to each and every company/ firm/ workplace/ establishment/ organization comprising of more than 10 employees including both private and public sector companies, government bodies, ministries, NGOs, schools and colleges etc. The same includes all forms of businesses like a firm, shop, restaurant, movie theatre or a multi-national company. Further, PoSH is relevant even in those offices where there are only male employees in the workplace.
Apart from this, there are heavy penalties against violation of the PoSH law which may even result in cancellation of license to carry out business. The employers, however, must look at complying with PoSH law not because of these heavy penalties but simply because a work environment with stringent laws against sexual harassment at workplace would in all probability result in greater growth of business.
How can Small & Medium Enterprises be PoSH compliant?
- Every office/ organization has to diligently formulate an internal policy for the prevention, prohibition and redressal of sexual harassment at workplace focused to publicize gender sensitive safe spaces and eliminate hidden factors that add towards a vicious work environment against women.
- Every office/ organization has to set-up an Internal Complaints Committee (ICC) and must conduct training as well as orientation programs with seminars for its members.
- Every office/ organization has to carry out awareness as well as training programs for its employees to culture them about sexual harassment at workplace and the rectification available to them
- Every right and remedy available to every employee against sexual harassment must be broadcasted at the workplace, together with the names and contact details of all the ICC members.
- Regular and relevant meetings must be conducted by the ICC at the workplace to discuss issues and resolve matters of sexual harassment. Besides this, the ICC needs to submit an annual report with complete data on the total number of complaints received and resolved to the District Officer concerned.
What are the responsibilities of an employer under PoSH?
There are a lot of responsibilities of an employer in the organization which start when the employer has to set-up an Internal Complaints Committee (ICC) to ensure that the victim can report her complaint with some official authority of the workplace and thereby try and get swift and appropriate justice for her.
In addition, the PoSH law not only furnishes that the employers must tackle sexual harassment as a crime and therefore, institute action against it, but also furnishes that employers have to focus on the ‘prevention’ of sexual harassment at workplace as well and further take requisite preventive steps towards it.
The following are the key responsibilities of an employer at a workplace:
- Ensuring a safe and secured work environment at the workplace.
- Ensuring a safe and secure workplace from the persons coming into contact with the employees.
- Ensuring display of penal consequences against sexual harassments at all clearly visible places at workplace.
- Conducting awareness workshop programmes at occasional intervals to make the employees understand the relevant provisions of law.
- Conducting orientation programmes for ICC members where the employer has to:
- Prepare and widely publicize a charter, an internal policy or a resolution or a declaration for prevention, prohibition and rectification of sexual harassment at work deliberated to promote gender empathetic safe workplaces as well as terminate undisclosed features that add towards a barbarous environment at work against women.
- Institute orientation seminars and programmes for the ICC members.
- To set-up awareness programmes for employees and institute meetings for communication which may include women’s groups, Gram Sabha, mothers’ committee, Panchayati Raj Institutions, urban local bodies, adolescent groups and other programmes as may be deemed important.
- Implementation of skill and ability building programmes for the ICC members at workplace.
- Broadcasting of contact details with names of all the ICC members at workplace.
- Take advantage of programmes created by State Governments to accomplish awareness programmes as well as workshops empathizing the employees with the law.
- Prepare important provisions to the ICC to deal with the complaints and subsequent inquiries.
- Assist in safeguarding the attendance of the accused as well as the witnesses before the ICC.
- Furnish information of the complaint to the ICC.
- Offer and provide assistance to the victim if and when she decides to register a complaint with regards to the offence under the Indian Penal Code (IPC).
- Initiating action under IPC or any other appropriate law, against the accused, or if the victim so chooses, where the accused is not an employee, in the office where the sexual harassment took place.
- Combating sexual harassment as a crime under the office laws and further take appropriate action against perpetrators for such crimes.
- Scrutinize the in-time acceptance of reports by the ICC.
Why should the employer follow the PoSH law?
The ICC established at a workplace needs to prepare and present an early report every year to the employer as well as the District Officer. This yearly report must have complete details of the total number of cases registered, the total number of cases disposed of and the total number of awareness programs and workshops conducted on sexual harassment by the organization.
Additionally, the entire data has to be collected and stored in record of the organization for three main reasons:
- Every year the employer has to add in the yearly report of the organization, the total number of cases of sexual harassment both registered and disposed of. Further, in case the employer does not wish to make any yearly report, he still has to communicate the total number of cases to the District Officer.
- Besides this, the government can ask any employer to submit all the information pertaining to sexual harassment at that workplace. Moreover, the government can also scrutinize the workplace as well as its records where each employer has to participate.
- Under the PoSH law, any non-compliance of the law or any provision of the law by an employer can result in a penalty of up to Rs. 50,000/- which can even include cancellation of license to carry out business if there has been habitual non-compliance of the laws.
What is an ICC?
An ICC is an Internal Complaints Committee at a workplace to receive and redress complaints pertaining to sexual harassment at workplace. An ICC is required to consist of a minimum of 4 members where these members can hold office for 3 years at a stretch:
- The presiding officer of an ICC has to be a woman employed at a senior position in the office and has to be one of the employees at the workplace.
- 2 internal members from workplace. According to the law, these 2 members, employers must prefer to have employees committed to the cause of aggrieved women employees or who have prior experience in social work with appropriate legal knowledge.
- 1 external member from amongst NGOs or associations/ institutions that are committed to the cause of women or a person familiar with the issues relating to sexual harassment (“External Member”).
The PoSH law further directs that at least half of the total members of the ICC must be women.
Who can be an external member in the ICC?
An external member can be one of the following:
- from an NGO committed to the cause and upliftment of women
- a lawyer who may have expertise in the matter
- associations committed to the cause and upliftment of women
- any person familiar with the issues relating to sexual harassment
Can the external member charge fee from the employer?
Yes, the external member once appointed from amongst the NGOs or associations is entitled to an allowance by the employer of Rs. 200 per day to hold the proceedings of the ICC with the reimbursement of travel cost.
How does a lawyer help in finding an external member?
First, a lawyer can be an external member himself provided the organization appoints him to be one. Besides this, a lawyer can also help organizations/ firms/ companies/ enterprises etc. to find the right external member for their ICC. The lawyer can ensure that the potential external member is:
- Qualified and has appropriate knowledge and skill sets to conduct inquiries as prescribed under the law.
- Qualified with extensive understanding of workplace dynamics and just & fair overview of gender disputes that may arise at the workplace.
Fully capable to provide the required relevant practical insights definite to the application of the law to organizations as desired by the company.