Understanding the POSH Act: What Employers Need to Know

Women have been suffering from gender biases for ages. In India, women have been witnessed getting exploited on a social, economic, physical, psychological, and sexual level, sometimes under religious guidance, scripture, and sometimes depending on social convention. The concept of gender equality was unknown to many, before the enactment of the Indian Constitution.

The 2013 Act, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act commonly referred to as “ PoSH Act” is an Indian Law which is enacted with the aim of making workplaces safe for women by preventing, prohibiting, and redressing grievances arising out of the acts of sexual harassment in workplaces against them. This law was made effective on December 9,2013, by the Government of India.

Importance of understanding the POSH Act for employers

The POSH Act for Employers ensures that the environment is free from sexual harassment in workplace. Compliance with the POSH Act is a legal requirement for all organizations, and non-compliance can lead to legal consequences, including penalties and fines. Employers need to understand the requirements of the Act to ensure that they are complying with the law. Sexual harassment can have a significant impact on the mental and physical health of the victim.

By understanding and implementing the provisions of the POSH Act, employers can create a safe and healthy work environment for their employees, which can improve their productivity and job satisfaction. An organization that takes the POSH Act seriously and implements its provisions can establish itself as a responsible and ethical employer. This can improve the employer brand and attract top talent, which can have a positive impact on the business.

Key Provisions Of The Posh Act

Definition of sexual harassment

Section 2(n)[1] of this Act explains “Sexual harassment” as:

• Making sexually colored remarks.
• Showing pornography.
• Any request for sexual advances.
• Physical contact and sexual advances.
• The verbal/non-verbal conduct of sexual nature or any other kind of unwanted physical gesture.

There is a type of sexual harassment known asquid pro quo sexual harassment, which is a form of sexual blackmail. There is typical scenario of quid pro quo harassment which involves a person in power pressuring an employee for sexual favors in exchange for advancement or the threat of adverse employment action.

The burden of examining whether the harassment suffered by the victim results in a hostile work environment totally depends on the internal committee because there is no other way mentioned in the Act.

Obligations of Employers

The objective of the obligations of the POSH Act for employer is to ensure a safe working environment for their female employees.

Constituting the PoSH Committee- It is directed under PoSH Act 2013, that the aim of this committee is to solve the grievances which relate to sexual harassment in the workplace. In Mrs. Arvinder Bagga & Ors. v. Local Complaints Committee, District Indore,[2] the High Court of Madhya Pradesh imposed a penalty of Rs. 50,000 on Medanta Hospital, Indore for not having the Internal Committee.

The other obligations of the employer under Prevention of Sexual Harassment Act are

1. Promoting a gender-sensitive workplace
2. Removing elements and factors of bias that create an intimidating environment,
3. Formulating and disseminating an anti-sexual harassment policy (PoSH policy),
4. Display the penal consequences for violating the law in noticeable places in the office,
5. Display the names and contact information of the PoSH committee members in the office,
6. Organize awareness campaigns, workshops, or sensitization programs for employees,
7. Organize training or orientation programs for the PoSH committee,
8. Provide the PoSH committee with the necessary facilities to investigate and inquire into a complaint,
9. Provide assistance to the aggrieved employee if they wish to file a complaint under IPC or any other law,
10. Treat sexual harassment as misconduct and initiate action against it.

Employees’ rights and remedies

The POSH Actprovidesthe following remedies to the Employee:

• The Settlement of disputes through conciliation;
• The Submission of the complaint to the police under Sections 294, 354 and 509 of IPC,1860;
• The victim women can be transferred to another workplace;
• The leave can be granted to the aggrieved woman for a period of 3 months.
• financial remedies to the aggrieved woman.
• Disciplinary action againstthe accused.

Steps For Employers To Ensure Posh Complaince

The importance of POSH at workplace is paramount because it helps to create a comfortable and safe work environment for everyone. In the case where POSH Act for employers and employees know the rules and regulations with respect to sexual harassment in workplace, they know it better how to prevent it. This can lead to higher job satisfaction, reduction in legal liability for employers.

Creation of POSH Policy

POSH compliance ensures that an organization follows the policies and guidelines and laws related to preventing sexual harassment in the workplace. It involves:

• Implementing appropriate policies and procedures.
• Providing training to employees and managers.
• Taking the right action to address any issue of sexual harassment.

There are a few benefits of POSH Compliance for businesses and employees which includes:

1. Creating a safe and comfortable work environment where all employees feelrespected and valued.
2. Reducing the legal liabilities: the POSH regulations can help businesses to avoid legal disputes related to sexual harassment, which can be expensive and damage the reputation of a company.
3. Improving employee morale and productivity: Employees are more satisfied and productive with their work when the environment is safe.
4. Enhancing organisational reputation: commitment to POSH compliance improves its reputation as a responsible employer.

Establishment of Internal Complaint Committee(ICC)

According to Section 4 of the POSH Act, every branch or office of an organization employing many employees must constitute an internal committee that should be available to hear and resolve sexual harassment complaints. The Internal Complaints Committee was renamed as Internal Committee by  Repealing and Amending Act, 2016.

There was a legal judgment named Global Health Private Limited[3] & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017)[4] the Court stated that there should be a specified fine to be imposed under the Prevention of Sexual Harassment Act who fails to constitute the Internal Committee.  Therefore, it is important to comply with the composition of the committee, as follows:

• A female Presiding Officer who is an employee at a senior level at work should be present:
• There should be aminimumof two members among the employees. These members shall be committed to women’s causes or have social work experience or legal knowledge.
• A member from outside NGOs or associations is needed that supports the cause of women or has experience in sexual harassment issues.
• It is stated in Rule 4 of the POSH Rules, that member should be an individual with expertise in workplace sexual harassment issues, such as a social worker with at least five years of experience, or familiar with labour, service, civil or criminal law
• Internal Committee members have a maximum tenure of three years.
• An inquiry must be conducted by a minimumof three members of the IC, including the Presiding Officer.

Conducting awareness and training programs

Conducting training is important because it makes the employees aware of and to make the consequences of violations in the organization. It should be organized for both genders to understand behavioral acceptance in a better way. It also helps in maintaining equality between gender in the workplace. It helps the employees to stand up and report any misconduct in the workplace to make sure that safety in the work environment. This training session is intended for a better understanding of sexual misconduct and acts of sexual harassment.

Benefits of POSH training:

• Ithelps inthe prevention, prohibition, and protection against sexual harassment in the workplace.
• The POSH awareness training at the right time saves the company from legal inaccuracies in legal complexities. 
• It reduces incidents and Improves Productivity.
• Helps in maintaining Legal Obligations.
• It also boosts Morale and improves Quality Work Culture.

Consequences Of Non-Compliance

Legal Penalties

Section 26 of the POSH Act states the Penalty for Non- Compliance with the Act. Non-compliance with the Posh Act by the Employer outcomes in a heavy monetary penalty of up to Rs 50,000 if he/she fails to:

• The constitution of the Internal Committee (IC).
• If there are attempts to contravene or abet the contravention of provisions of this Act.
• If fails to act upon the complaints of the Internal Complaints Committee.
• If fails to file an annual report with the District Officer.

In case where employer repeats the breach under the Act, they shall be liable to:

• The punishment will be twice or higher (if any punishment is prescribed by another law for the same offence, the same will be taken into consideration, while awarding the punishment under the POSH Act).
• Cancellation/withdrawal/ Licence which is required for carrying on business or activities.

Reputational Damage

If there is a lack of POSH compliance ,then it may also harm the reputation of the company. It will also create a hostile work environment. In a situation where it is found that the workplace isn't POSH compliant, this would result in an unfriendly and unsafe workplace for employees who are already working due to lack of any safety measures and no redressal or solving mechanism of such issues, eventually, lead to the workplace having a bad reputation.

Conclusion

The POSH Act 2013 represents an important advancement in providing all employees in India with a safe workplace. It has a tremendous effect on Indian workplaces by giving victims of sexual harassment the necessary legal protection. But the way this act is enforced still must be changed.

Importance of POSH compliance for employers

In recent days there are many workers, especially women, who lack a sense of security. Men employees will be afraid of someone making an improper complaint and training which helps them to understand the repercussions of making a false complaint. It was ensured that women should feel safe at the training. Every women employee is equally aware of it and has the ability to report it when they receive the training at the same time.

The Participants in the particular training are also being taught about all the facets of sexual harassment, false allegations, and how to enforce the law, and stop the abuse.

Outlook for the POSH Act in India

Clarification with respect to the applicability, accountability, implementation, and monitoring should be included in the POSH Act to encourage better reporting. It is very necessary that employers along with authorities must adopt, encourage, and implement best practices to detect and give solutions to workplace harassment which will result in high workplace productivity. The best way to prevent such improper working conditions is to actively advocate for initiatives that increase awareness and encourage prevention efforts

FAQs

[1]Section 2(n), The Prevention of Sexual Harassment at Workplace Act,2013.

[2]Mrs. Arvinder Bagga &Ors. V Local Complaints Committee, District Indore, W.P.No. 22314/2017.

[3] https://indiankanoon.org/doc/88140454/

[4]Global Health Private Limited & Mr Arvinder Bagga v Local Complaints Committee, District Indore and Others, W.P.No. 22314 and 22317 of 2017.

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