Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Introduction :
That seeks to protect women from sexual harassment at their place of work. The Bill got the assent of the President on 23 April 2013.
This statute superseded the Vishaka Guideline for Prevention Of Sexual Harassment (POSH) introduced by the Supreme Court (SC) of India. Most Indian employers have not implemented the law despite the legal requirement that any workplace with more than 10 employees need to implement it. The government has threatened to take stern action against employers who fail to comply with this law.
Section 3: Sexual Harassment Prevention.—
(1) No woman will be subjected to sexual harassment at any time or place of employment.
(2) The following situations, among others, may amount to sexual harassment if they occur, are present in connection to, or are related to any act or conduct of sexual harassment:
(i) an inferred or explicit promise of preferential treatment at work; or
(ii) an inferred or explicit threat of adverse employment treatment; or
(iii) a threat, implied or explicit, concerning her current or future work position; or
(iv) interfering with her job or making her work environment frightening, insulting, or hostile; or
(v) humiliating treatment is likely to affect her health or safety.
Section 4 to 8 deals with make two committee for file the complaint for these cases Internal Complaints Committee [ICC] and Local Complaints Committee [ICC]
Under the POSH Act, an employer is legally required to comply with certain statutory requirements. One of these is the constitution of an Internal Complaints Committee (“ICC“), a body envisaged to receive complaints on sexual harassment at the workplace from an aggrieved woman, as well as to inquire into and make recommendations to the employer on the action required pursuant to its inquiry of such complaint made.
The following discussion highlights key aspects that must be borne in mind by an employer seeking to constitute an ICC in compliance with the POSH Act.
Constitution and tenure of the Internal Complaints Committee
- Presiding Officer: Shall be a woman employed at a senior level at workplace from amongst the employees and in case senior level woman employee is not available in other offices or administrative units of the workplace, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization.
- Not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
- One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least fifty percent of the total Members so nominated shall be women.
- Fees and allowances shall be paid to the member appointed from amongst the non-governmental organizations or associations for holding the proceedings of the Internal Committee, by the employer.
- The member or Presiding officer shall be removed from the committee if he/she has been convicted for an offence or is under pending inquiry into an offence or has been found guilty in any disciplinary proceedings or has abused his position or has published or made known the contents of a complaint and inquiry proceedings to the public.
- Vacancy in the ICC shall be filled by fresh nomination.
- The tenure of the Presiding Officer and every Member of the ICC shall not exceed three years, from the date of their nomination.
Local Complaints Committee [LCC]
Local Complaints Committee (LCC) is a body formulated according to the Section 6 of the POSH Act.
- The District Officer is responsible to constitute a committee known as the Local Complaints Committee [also called LCC] to receive complaints of sexual harassment from establishments where ICC has not been constituted due to having less than ten workers or if the complaint is to be filed against the employer himself.
- One Nodal officer is designated by the District Officer in every block, taluka and tehsil to receive complaints related to sexual harassment and forward the same to the LCC within a period of seven days.
- LCC jurisdiction shall extend to the district where it is constituted.
Composition and tenure of Local Complaints Committee [LCC]
- A Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;
- One Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
- Two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
- The concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.
- The member or Chairperson shall be removed from the committee if he/she has been convicted for an offence or is under pending inquiry into an offence or has been found guilty in any disciplinary proceedings or has abused his position or has published or made known the contents of a complaint and inquiry proceedings to the public.
- Vacancy in the LCC shall be filled by fresh nomination.
- The members and Chairperson shall hold office for such period, not exceeding three years.
HOW WILL A COMPLAINT BE DONE :
Any aggrieved women may make in writing a complaint of sexual harassment at workplace to the Internal committee/ Local Committee within 3 months from the date of incident or the date of the last incident in case of a series of incidents. In case the women cannot write, the Presiding officer/ any member of Internal Committee/ Chairperson/ any member of Local Committee shall render all reasonable assistance. (Section 9(1) of the Act)
The Internal Committee and the Local Committee can extend the time limit not exceeding another 3 months if it is satisfied that the circumstances were such which prevented the woman from filing the complaint within the said period
Power of Complaint Committee [ICC & LCC] in case of False and Malicious Complaints
Where the ICC or LCC finds out that the complaint has been filled with malicious intentions or a false complaint is filed or forged/ misleading documents have been produced by the aggrieved person or even after knowing that the complaint is false, it was still filled by the aggrieved person or his known, the ICC or LCC may recommend to the employer or the District Officer, to take strict actions.
Section 11 : Complaints Procedure
- Any employee will have a right to lodge a complaint concerning sexual harassment against an employee.
- Such a complaint needs to be in writing.
- If the complaint is oral, the same needs to be in writing. The complainant, if desires could be facilitated in writing the complaint by an Internal Complaints Committee member.
- The Complainant will be afforded confidentiality on the complaint by the Internal Complaints Committee members
- Immediately upon receipt of the Complaint, the Member of the Internal Complaints Committee to whom the Complaint is made shall communicate the same to the Chairperson of the Internal Complaints Committee.
- Within a period of 5 working days from the date of such communication, the Chairperson shall convene a meeting of the Internal Complaints Committee.
- The Internal Complaints Committee shall examine the complaint and shall undertake investigation of the complaint after giving opportunities to the complainant to present his/her case and the respondent to give his/her version. The Internal Complaints Committee may examine witness from both the sides and also give opportunity of cross-examining of the witness. Documents if any produced by the parties may be taken on record. Neither the complainant nor the respondent is allowed to bring in any legal practitioner to represent them in their case at any stage before the Internal Complaints Committee. The Internal Complaints Committee on completion of the inquiry will submit its report to the complainant, respondent and the company management. The Internal Complaints Committee shall enquire into the complaint as prescribed under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Rules made thereunder as in force from 9-12-2013.
Section 12 : Protection against Victimization
In the event complainant being an employee and the respondent being his/her manager, during the pendency of investigation and even after such investigation if the manager is found to be guilty, the respondent shall not act as Manager of the Complainant.
Section 13 : Consequence of Complaint Being Proved
In the event allegations made in the complaint are proved against the respondent, it will be taken as proved misconduct and the competent authority may impose any of the punishment as envisaged in the policy on disciplinary process including dismissal.
Section 14 : Consequence of False Complaint
In the event allegations made by the complaint are proved to be false then the competent authority may impose any of the punishment as envisaged in the policy on disciplinary process including dismissal.
Section 15 : Obligations of the Management
The Management of the Company shall provide all necessary assistance for the purpose of ensuring full effective and speedy implementation of this Internal Complaints Committee constituted as above and shall implement the decisions in an expeditious manner.
Section 16 : Third Party Harassment
In case of third party Sexual Harassment the Internal Complaints Committee will actively assist and provide all its resources to the complainant in pursuing the complaint.
Section 17 : Savings
The proceedings under this policy shall not be stalled or postponed merely because the complainant is proceeding against the respondent under any other provision of civil or criminal law.
Under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, every employer, having more than ten employees, is duty bound to create a workplace free of sexual harassment, which shall include safety of and from persons coming into the workplace. The Act has laid down the following as the responsibility of employers toward prevention and prohibition of instances of sexual harassment at the workplace:
Duties of Employer : Section 19
#1: Formulating a separate Sexual Harassment Policy – and circulating the same to all its employees – With the coming into force of the Act, it is mandatory for all employers having more than ten employees to have a separate POSH (Prevention of Sexual Harassment) policy and to circulate the same with all its existing employees and all new employees who join the organization as part of their orientation into the organization.
#2: Amend its service rules – All employers will have to make certain amendments to their existing service rules to incorporate the obligations imposed on them under the Act. Few recommended changes are:
to include Sexual Harassment as a punishable misconduct under the service rules,
- lay down the measures or actions which can be initiated against such mis-conduct,
- lay down the consequences of a false complaint.
#3: Constitute an Internal Committee (IC) – The employer is required to set up an IC at every branch having more than 10 employees, headed by a woman as its presiding member, and not just at the head or regional office. The majority of the members of the IC should be women, with at least one external member.
#4: Display the Policy – After formulation of a separate POSH policy and its circulation among the employees, the employer is also required to display the same at conspicuous places in the workplace along with the consequences of sexual harassment. Employers are also required to conspicuously display composition of the Internal Committee along with the contact details (email etc.) where the aggrieved can send their complaints.
#5: Conduct regular awareness sessions – The Act mandates that every employer must conduct regular workshops and awareness programs for sensitizing all its employees in this regard. The Government has formulated appropriate training modules which may be used for educating the employees and has a recommended list of facilitators/ trainers, who can be engaged by the employers for conducting such awareness sessions.
#6: Equipping the IC – The employer has to ensure the Internal Committee is also regularly trained and sensitized to appropriately handle grievances sent to it. In this regard, the employer is required to conduct regular orientation and capacity building programs to educate and upskill the IC members.
#7: Facilitating a fair enquiry – The Act requires the employer to provide necessary facilities to the IC for dealing with a complaint and conducting an inquiry. The employer is mandated to make available all such information from its records to the IC, as the IC may require it for the purpose of conducting an inquiry.
#8: Act upon IC’s recommendations – Employer is required to act upon the recommendation of the Internal Committee within 60 days of receipt of the report of the Internal Committee. Further the employer shall provide assistance to the aggrieved in case she chooses to file an FIR in relation to the offence.
#9: Prepare and submit annual reports – The IC is required to submit annual reports to the appropriate authority and the employer under provisions of this Act detailing:
-
- the number of complaints received,
- the complaints which were disposed of,
- recommendations, if any, of the IC in each case,
- cases which are still pending for more than 90 days, stating reasons for delay, if any,
- action taken by the employer based on the recommendations of the IC,
- Number of awareness sessions conducted in the year for the employees and the IC
Duties & Power of District officer (Sec.20)
1.To monitor the timely submissions of reports by the Local Complaints committee.
2. To take such necessary measures for engaging non-governmental organization for creation awareness on sexual harassment and rights of women.
Other important provisions of the Act
1. The ICC/LCC shall for each calendar year prepare an annual Report and will submit the same to the Employer/ District officer.
2. The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the Annual Report of his organization or where no such report is required to be prepared, intimate such number of cases, if any, to the district officer.(Sec-22)
3. Penal provisions for Non-Compliance of the Act Section 26(1) says that;
Where the employer fails to—
a) Constitute an Internal Complaint Committee under sub section(1) of section 4;
b) Take action under section 13,14, and 22; and
c) Contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made there under
He shall be punishable with fine which may extend to 50,000 rupees. Sub section (2) of section 26 of the act provides stringent penalties for those employers who subsequently commits and convicted for the same offence under this act.