PoSH Act: Role of an Employer

What do Organizations need to know about the Indian Sexual Harassment of women at the workplace (Prevention, Prohibition, and Redressal) Act 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 201R3, more commonly known as the PoSH Act, became functional on 9th December 2013 in India. The Act was proposed by the Ministry of Women and Child Development for employers to curb workplace sexual harassment across all organizations and assure the promise of privilege to all women employees to voice against sexual crimes in workplaces.

The PoSH or Prevention of Sexual Harassment Act, in a nutshell, is India’s first law that was passed, keeping in mind the need to ensure safe workplaces for women in every sector of each industry, both organized and unorganized, across the country. While the Act predominantly concentrates on the safety of women employees, most employers and organizations have ensured that the PoSH policies are gender-neutral, a crucial step in delivering the promise of secure and harmonious workplaces.

Deconstructing Sexual Harassment under the PoSH Act:

As employers and HR professionals, it is imperative for all organizations to clearly comprehend what may be considered Sexual Harassment in the workplace and in work-related environments.

Sexual harassment has been defined in Section 2(n) of the PoSH Act as:

1. Physical contact and sexual advances (e.g., being touched inappropriately)
2. A demand or request for sexual favours
3. Making sexually coloured remarks in the workplace (e.g., commenting inappropriately about appearances or passing lewd statements)
4. Showing pornography to any employee of the organization or a third party in the workplace or outside (e.g., sending pictures that include but are not limited to nudity and vulgarity)
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature towards any employee within the organization or with any third party in the workplace. (e.g., sending vulgar or inappropriate messages)

Apart from this, employers and HR professionals in an organization should be aware that situations and behaviours that lead to the below-mentioned circumstances may also amount to Sexual Harassment, in addition to the actions mentioned above.

1. Implied or explicit promise of preferential treatment in employment (e.g., requesting sexual favours in exchange for a promotion or the promise of a promotion)
2. Implied or explicit threat of detrimental treatment in employment (e.g., threatening an employee reporting any unlawful incident in the workplace with possible demotion when they don’t agree to demands of sexual nature)
3. Implied or explicit threat about the present or future employment status (e.g., threatening an employee with termination when they don’t agree to demands of sexual nature)
4. Interfering with work or creating an intimidating, hostile, or offensive hostile work environment within or outside the workplace.
5. Humiliating treatment that is likely to affect the health and safety of employees in an organization.

Understanding what comprises Sexual Harassment enables employers and HR professionals to spread strong awareness among employees and removes ambiguity around the nuances of Sexual Harassment in the workplace.

Mandates of the PoSH Act:

1. Promise and Provide a safe work atmosphere at the workplace:

• The employers/HR team must mandate necessary protocols to promise and necessitate the safety of employees from the colleagues, supervisors and Managers, and non-employees who may visit the premises for various reasons.

2. Establishments and employers with 10 or more employees must constitute an Internal Committee:

• Any employer with an establishment having 10 or more employees must have an Internal Committee or IC, which promises and undertakes responsibility for redressing complaints of Sexual Harassment in the workplace. The IC is one of the two redressal forums under the PoSH Act.
• Local committee for workplaces with less than 10 employees: A Local Committee (LC) for each district is mandatory to hear and redress Sexual Harassment complaints of employees working in establishments with less than 10 employees or for companies that have failed to constitute an IC in the workplace.

3. Inquiry and reporting of all complaints of Sexual Harassment:

• Depending on the establishment, the IC/LC is responsible for conducting an inquiry into complaints of Sexual Harassment within 90 days from the day of submission of a complaint to HR. The IC/LC must prepare and submit a report of the findings and recommend the course of action respectively to the employer and the district authority.

4. False complaints based on malicious intent must be punished:

• The PoSH Act mandates strict action against those who are found to file false complaints of Sexual harassment with the HR or employers at the workplace. This requires the IC/LC to recommend the course of action to the employer and the district authority.

5. Sensitization of employees through regular awareness programs, training, and workshops:

• All employers are duty-bound by the PoSH Act to create awareness against Sexual Harassment in the workplace, the procedures to follow in case of complaints, the responsibilities of the IC/LC, and the consequences of engaging in acts amounting to Sexual Harassment. Sensitizing employees is imperative to prevent incidents of Sexual Harassment and build a safe work environment for employees. These programs must be carried out by trainers who are experts in PoSH sensitization.

Who are the beneficiaries of the Act?

The PoSH Act protects every woman employee in any organization or establishment. This includes women who are:

1. Directly employed by the employer, employed through an agency or a contractor
2. Employed with or without the knowledge of the principal employer
3. Employed as volunteers or for remuneration
4. Employed on temporary, regular, ad-hoc, or on a daily wage basis
5. Also include but not limited to contract workers, interns, trainees, probationers, or apprentices

An important point to note is that all women working in any establishment, organization, or domestic household, be it public, government-run, private, or a part of the organized/unorganized sector, are protected under the provisions of the PoSH Act.

Why do we need to be compliant with the PoSH Act?

The emotional and mental well-being of employees largely depends on their work environment. Providing a safe and secure work environment ensures the well-being of employees and better morale, and in turn, higher productivity.

Strict compliance with the PoSH Act helps create a safe workplace, which improves the employer brand, further helping attract better talent and eventually grow as an organization.

Employers must further keep in mind that non-compliance with PoSH laws would lead to severe financial penalties while also losing face in the job market.

What happens if your organization is not compliant?

Organizations found not compliant with PoSH Act may warrant a fine of up to Rs.50,000/-.

If found non-compliant a second time around, employers would need to pay a fine of twice the amount fined the first time. The organization may also risk losing their permit or finding their license or registration cancelled, which would lead to severe consequences for the employer and the employees.

For more information on Prevention of Sexual Harassment(POSH), EAP (Employee Assistance Programs), D&I (Diversity and Inclusion) offerings by CecureUs , please contact connect@cecureus.com or call us at +91-7200500221