How to prevent harassment in the workplace Prevention of Sexual Harassment By CS Shiriti Kumari


This case ruling had issued Vishaka guidelines under Article 32 of the Constitution of India. The Supreme Court had made it mandatory that these had to be followed by all originations until a legislative framework on the subject has been drawn-up and enacted. However, the legislative void continued and the Supreme Court in Apparel Export Promotion Council v. A.K Chopra ((1999) 1 SCC 759) reiterated the law laid down in the Vishaka Judgment. Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual harassment stating that the Vishaka Guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country. The Supreme Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the aggrieved persons to approach the respective High Courts.
Major Features
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The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
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The Act also covers concepts of 'quid pro quo harassment' and 'hostile work environment' as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
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The definition of "aggrieved woman", who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
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An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
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While the "workplace" in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
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The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
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Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
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The Complaints Committees have the powers of civil courts for gathering evidence.
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The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
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The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
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The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations.
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Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ? 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
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Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
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Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
The sexual harassment of women at workplace Prevention, Prohibition, and Redressal Act 2013
https://www.compliancecalendar.in/resources/1579858553Sexual-Harassment-at-Workplace-Act.pdf
Sexual Harassment Of Women At Workplace Prevention, Prohibition, And Redressal Rules 2013
https://www.compliancecalendar.in/resources/1580376566Sexual-Harassment-of-Women-...-Rules-2013.pdf
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 |
|
Citation |
Act No 14 of 2013 |
Territorial extent |
Whole of India |
Enacted by |
Parliament of India |
Enacted |
3 Sep 2012 & 11 Mar 2015 (Lok Sabha) |
26 Feb 2013 (Rajya Sabha) |
|
Assented to |
22-Apr-13 |
Commenced |
09-Dec-13 |
Legislative history |
|
Bill |
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 |
Bill citation |
Bill No 144-C of 2010 |
Bill published on |
07-Dec-10 |
Committee report |
Standing Committee Report |
- Physical contact and advances; or
- A demand or request for sexual favours; or
- Making sexually coloured remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
APPLICABILITY OF POSH ACT
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Whole of India;
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All Employer or organization employing 10 or more employees (irrespective of their Gender).
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Workers or Employees;
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Every workplace, establishment, company, and organization, inclusive of MNCs, firms, shops, restaurants, etc.
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A member of the Establishment;
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An outsider against a member of the Establishment
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A member of the Establishment against an outsider
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Under the policy of the Organization if any;
- Person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent;
- A contractor, with or, without the knowledge of the principal employer whether for remuneration or not or working on a voluntary basis or otherwise, whether the terms of employment are express or implied;
- And includes a co-worker,
- A contract worker,
- Probationer,
- Trainee,
- Apprentice or called by any other such name
- PoSH policy
- Sensitisation of all employees
- Formation of Internal Committee (IC)
- Training of IC on Investigation
- Procedure
- External Member who ensures
- fairness
- Filing of the Annual Report
Timelines |
|
Submission Complaint |
Within 3 months of the last incident |
Notice to the Respondent |
Within 7 days of receiving copy of the complaint |
Completion inquiry |
Within 90days of completion of the inquiry |
Implementationof recommendations |
Within 60 days Appeal within 90 days of the recommendations |
- Transfer the aggrieved woman of the respondent to any other workplace;
- Grant leave to the aggrieved woman up to a period of three months.
- Disclosure of compliance under the Sexual Harassment of Women at Workplace Act in the Annual Reports of Private companies now made Mandatory under Companies (Accounts) Rules, 2014 Vide its *notification dated 31.07.2018.
- It may be noted that Section-134 of the Companies Act, 2013 provides the disclosure framework which the Directors of every company are required to comply with in the Annual Reports.
- This section also includes the penal provisions for non-disclosure.
- The inclusion of the compliance under the Sexual Harassment of Women at Workplace Act in the non-financial disclosures will ensure that the issue gets into the focus into Board of Directors of the companies
- As per the introduction of above-stated clause (x) under Rule 8 (5) now mandates all companies to report on compliance of provisions of Sexual Harassment Act relating to the constitution of Internal Complaints Committee.
- The non-compliance by a Company may result in imposition of a fine on the defaulting company under section 134 of the Act, which shall not be less than INR 50,000/- but which may extend to INR 25,00,000/- and imprisonment for every officer of the Company who is in default for a term which may extend to 3 years or with fine in the range of INR 50,000/- to INR 5,00,000/-.
Basic Difference between IC &LC
Internal Committee |
Local Committee |
Where more than 10 workers |
Where less than 10 workers |
constituted under section 4; |
constituted under section 6; |
By Employer |
By Every District Officer |
- A Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees.
2. Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization;
- Minimum 2 Members from amongst employees who are committed to the cause of women or who have experience in social work.
- One member from amongst NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
- The Presiding Officer and every Member of the Internal Committee can hold office for a period not exceeding three years, from the date of their nomination as may be specified by the employer.
- A safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
- Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
- Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
- Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
- Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
- Make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
- Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
- Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
- Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
- Monitor the timely submission of reports by the Internal Committee.
- It is the duty of the ICC to submit an annual report, which includes the number of cases filed/disposed of every calendar year to the employer and district office.
- The employer has a statutory obligation to ensure this report (POSH) is included in the annual report under section 134 of the Companies Act 2013 of the organization filed to the Registrar of companies (ROC).
- No. of complaints of sexual harassment received in the year
- Complaints disposed off during the year
- No. of cases pending for more than 90 days
- No. of workshops / awareness programs carried out
- Nature of action taken by Employer / District Officer
- Monitor the timely submission of report furnished by the Local Committee;
- Take such measures as may be necessary for engaging non-governmental organisations for creation of awareness on sexual harassment and the rights of the women
FAQs
- A Presiding Officer who has to be a woman employed at a senior level at workplace. She has to be from amongst the employees.
- Two Members from amongst employees. The law says that for these two members, employers should prefer to have employees who are committed to the cause of women or who have had experience in social work or have legal knowledge.
- One Member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment (“External Member”).
- Provide a safe working environment at workplace which includes safety from persons coming into contact at workplace.
- Display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the Internal Committee (“IC“).
- Formulate and widely disseminate an internal policy for prohibition, prevention and redressal of sexual harassment.
- Declare the names and contact details of all the members of IC.
- Organize workshops and awareness programs at regular intervals for sensitizing employees.
- Organize orientation programs for IC members.
- Conduct capacity building and skill building programs for IC members.
- Carry out employees awareness programs and create forum for dialogue.
- Use modules developed by State Government to conduct workshops and awareness programs.
- Organize regular training programs for your IC members so that they are fully up to date on the law and the procedure.
- Organize awareness programs for employees on a time to time basis to keep them informed of their rights and duties and what may constitute sexual harassment.
- Organize sessions for management so that they can comply with the law effectively and take measures to prevent instances of sexual harassment and create a healthy work atmosphere.
- Have orientation programs for new joinees to inform them of your beliefs and policy.
- Have gender sensitization programs to instil the feeling of equality at workplace. This can go a long way in showing that you are an equal opportunity employer.
- Ensure that your IC meets on a regular basis to discuss issues and keep themselves updated.
- Provide your IC with all the facilities they require.
- A Presiding Officer who has to be a woman employed at a senior level at workplace. She has to be from amongst the employees.
- Two Members from amongst employees. The law says that for these two members, employers should prefer to have employees who are committed to the cause of women or who have had experience in social work or have legal knowledge.
- One Member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment (“External Member”).
- These kind of sessions will ensure that your employees are aware of their rights as well as responsibilities.
- It will also show that you have taken actual steps to prevent instances of sexual harassment.
- It will help your IC deal with complaints in a much better manner.
- It will instil faith of the employees in the organization.
- It will create gender sensitive work environment.
- If conducted in a manner not to scare employees to work with the opposite gender but to work in a healthy environment respecting the equal right of each other to work in that environment, would lead to positivity and work productivity.
- Circulate the policy to your employees on email
- Publish it on the website or intra-net
- Display posters at conspicuous places in the workplace
- Provide a safe working environment at workplace which includes safety from persons coming into contact at workplace.
- Display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the IC.
- Formulate and widely disseminate an internal policy for prohibition, prevention and redressal of sexual harassment.
- Declare the names and contact details of all the members of IC.
Is POSH Act is applicable?
Section 21 of Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013
- of complaints of sexual harassment received in the year: NIL
- Complaints disposed off during the year: NIL
- of cases pending for more than 90 days: NIL
- of workshops / awareness programs carried out: <>
- Nature of action taken by Employer / District Officer: NA
- a member of the Establishment against another member of the Establishment notwithstanding the fact whether the act of sexual harassment has taken place at the work place of the Establishment or outside the workplace of the Establishment or extension thereon.
- an outsider against a member of the Establishment
- a member of the Establishment against an outsider
Provided that an employee engaged through a contractor shall be a member within the meaning of the Policy.
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- Constitution of Internal Complaints Committee. With a view to redressing grievances on sexual harassment, an Internal Complaints Committee, hereafter referred to as Committee, will be formed. The committee will comprise of the Chairperson, four members of the Establishment and at least one person nominated from outside who shall be a known personality in the field of women issues.
- Entity of Committee. The committee shall be empowered to carry out the mandate of the Policy.
- Powers of Committee. The committee shall have both protective as well as corrective powers. The former will form part of the duties of the Committee to protect rights of members and others at the Establishment whereas the latter form part of implementation of enquiry in case violation of human rights or sexual harassment is reported. As such, the Committee is expected to:
- ensure an environment free from sexual harassment and human rights violation
- ensure an atmosphere wherein the members do not find any gender discrimination
- to publicise the Policy among all members and others who deal with the Establishment
- to arrange programmes spreading awareness of the consequences of sexual harassment and violation of human rights
- to ensure that no member or outsider is coerced, illtreated, victimized, intimidated, distorted or manhandled for having lodged a complaint under the Policy.
- accepting and registering in due time the complaints
- conducting of enquiry and recommending to the Disciplinary Authority the award of punishment to the culprit.
- arranging medical, psychological, emotional help to the victim, if found necessary
- seeking police or legal intervention wherever necessary
- keeping the entire proceedings confidential if the victim so desires.
- 4.1 The quorum of the Committee shall be two- third of the membership.
- Procedure
- If the Committee so desires, both parties can be heard separately.
- If the complainant is a third party and the aggrieved is not willing for a personal appearance before the Committee due to any personal reason, the Committee shall proceed with enquiry on the basis of prima facie evidence.
- The Committee after hearing the complainant shall issue charge sheet to the accused calling on him/ her to defend the charges within a date not later than seven days.
- The Committee shall record the entire process of hearing duly signed by the parties to the enquiry as token of their acceptance to the record.
- If the Committee so desires, the Committee shall summon, by sending notice in the same manner as per clause 4.3 of the Policy any member, outsider or other to appear before the Committee to give witness.
- The Committee after careful trial shall recommend to the Disciplinary Authority the disciplinary action which the Committee thinks fit and as provided in clause 5 of the Policy.
- The Committee is expected to complete the entire course of hearing within thirty days of complaint.
- Warning
- Written apology
- Reduction to lower grade
- Reduction of Increment
- Demotion
- Stoppage of Promotion for two years or more depending upon the gravity of case
- Reassignment of duties including debarring from supervisory duties
- Accepting Bond of Good Behaviour.
- Discharge
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- The decision of the Disciplinary Authority shall be communicated to the accused in writing.
- In case an outsider is involved as accused, the Disciplinary Authority shall initiate action by making complaint with the appropriate authority.
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- Review of working of the Committee
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About Author
CS Shiriti Kumari
Qualification: Company Secretary
Company: Compliance Calendar LLP
Location: New Delhi
Member Since: 09 Dec 2017 | Total Articles Contributed: 21
About Author :
Co-Founder Compliance Calendar LLP
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