A comment by a co-worker, unsolicited messages from your manager, or any form of unwanted advances made at work can have you thinking about whether you should confront the issue. You may fear losing your job, damaging your reputation, or even having your concern ignored.
Knowing your rights forms the basis of deciding what steps should be taken. The POSH Act 2013 is legislation in India that prevents sexual harassment of women in the workplace and creates a procedure to deal with complaints. This knowledge of the scope of the law and what happens in case of filing a complaint can assist in making decisions.
What Is the POSH Act?
The POSH Act is officially called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and it came into effect on 9th December 2013.
The law obliges employers to ensure safety in the workplace and the provision of the necessary complaints procedure. It also outlines how to receive complaints, conduct investigations, and act if the allegations turn out to be true.
This means that it is not just about putting things down on paper. Workers must know where to complain about harassment and what process is in place for them.
What Constitutes Sexual Harassment at the Workplace?
Not all situations that can create discomfort in the workplace can be automatically regarded as sexual harassment in legal terms. It depends on the situation at hand.
Under the Act, sexual harassment includes unwelcome conduct such as:
- Unwanted physical contact or advances: Unconsented touching of a person or making unwanted sexual advances.
- Requests for sexual favours: Requesting sexual favours, whether through direct requests or offering professional advantages in return.
- Sexually coloured remarks: Unwelcome remarks of a sexual nature.
- Showing sexually explicit material: The unwelcome display or distribution of material of a sexual nature.
- Other unwelcome sexual conduct: Sexual conduct, either verbal, non-verbal, or physical, as defined by the Act.
The law also specifies situations like the making of implied promises of favoritism, threats of adverse effects on the employment situation, obstruction of work, and intimidation in the workplace.
For instance, when a manager informs an employee that a promotion is based on the acceptance of some kind of sexual advance from him or her, then the latter cannot regard it as just a dispute in the workplace.
Moreover, harassment could also be perpetrated when traveling for work purposes, at professional events, or via electronic communications at the workplace, depending on the scenario.
Who Is Protected Under the POSH Act in India?
Under the POSH Act in India, a woman who is subjected to sexual harassment in the workplace would be covered irrespective of her age and whether she is employed or not, provided that the provisions of the Act are met.
In case you have any doubt regarding whether your problem would fall within the purview of the Act, a legal consultation from Labour and Employment Lawyer can assist you in clarifying the issues.
It should be noted that the POSH Act covers protection of women. There may be different policies and laws applicable to other employees.
What Are Your Rights Under the POSH Act for Employees?
POSH Act knowledge from an employee perspective refers to learning about the safeguards and processes available in case of harassment.
- Access to a complaint mechanism: You may contact the appropriate Internal Committee or Local Committee.
- Confidentiality: The Act limits the publication or dissemination of certain complaint information, identities, and the conduct of the inquiry.
- A fair inquiry: The parties should be afforded procedural rights as per the applicable requirements.
- Possible interim relief: While the inquiry is going on, the committee may suggest certain actions, including that either of the parties be transferred, or that the aggrieved woman be granted a leave of three months at her request.
- Action following an inquiry: If the allegations are proved, the committee may recommend certain action as per the law and applicable service rules.
It does not mean that any complaints will bring about a definite outcome. It offers a structured way through which claims can be looked into.
How to File a POSH Complaint
If you have encountered sexual harassment in the workplace, there is no requirement for you to wait for the situation to worsen before you look into your options. Understanding how to lodge a complaint for POSH will allow you to report what occurred.
Step 1: Document the incident
Write down what occurred, when and where it occurred, who was involved, and if there were any witnesses. If there have been multiple incidents, write them down individually.
Step 2: Preserve relevant evidence
Maintain all information that is legally obtainable by you in terms of emails, screenshots, messages, documents, and other records. Refrain from modifying any primary evidence.
Step 3: Identify the appropriate committee
Should there be an Internal Committee in your place of work, you may generally address it. Where the law refers you to address your case to the Local Committee, then that is what should be done.
Step 4: Submit a written complaint
Under Section 9, the complaint is supposed to be made in writing within three months after the act or, in case of acts occurring repeatedly, three months after the last incident. This period may be extended further by another three months upon recording the reason for the satisfaction that certain circumstances prevented the woman from making the complaint within this period.
If you are unable to prepare the complaint, the Presiding Officer or the Chairperson of the committee, or any other member appointed under the Act, shall assist you reasonably in this regard.
Step 5: Keep a record of your submission
It is crucial to keep a copy of the complaint as well as any receipt relating to the complaint. If there is any doubt about the deadline, jurisdiction, and other issues, it is best to make sure that it is not an ongoing procedure of filing.
What Is the Internal Complaints Committee (ICC)?
The legislation makes provision for the formation of an Internal Committee (IC), popularly referred to as the Internal Complaints Committee (ICC), that would be responsible for receiving and handling sexual harassment cases reported in the workplace.
An employer is supposed to establish an Internal Committee in workplaces where there are ten or more employees. The constitution of the Internal Committee includes a senior female employee as the Presiding Officer and members from within the organization, with one member coming from outside.
The Committee receives complaints and undertakes investigations in accordance with the Act and any relevant regulations. The employees should have access to information about the Committee for the workplace where they work.
When should you approach the Local Committee?
The Local Committee (LC), which works at the district level, deals with certain cases, such as complaints from organizations where no Internal Committee has been set up since the organization has less than ten employees, and complaints against the employer.
In the case where the alleged harasser happens to be the employer, then you cannot simply assume that the complaint has to go through the committee that is run by the employer.
POSH Act Rules and Regulations: What Happens After a Complaint?
POSH Act Rules & Regulations define a procedure for dealing with the complaint instead of considering the allegations as misconduct per se.
Here is what generally follows:
- Conciliation, where applicable: On request from the aggrieved woman, the committee may try conciliation before starting any investigation. Monetary compensation shall not form the ground for conciliation.
- Inquiry: In case the investigation is undertaken, both parties have been provided the rights under the law and applicable rules. The committee may also investigate any evidence and witnesses.
- Interim measures: As per written request by the aggrieved woman, the committee may take temporary measures allowed under Section 12 until the investigation is completed.
- Inquiry report: The investigation should be usually done within 90 days. After that, the committee submits its report according to the provisions of the Act.
- Action and appeal: The employer/District Officer must make actions in relation to the recommendations within the statutory time limit. The appeal process might also be available under the Act and applicable service rules.
An unsubstantiated complaint does not necessarily imply malice or falsehood. In Section 14, the committee is required to ascertain the context surrounding the complaint, which should include malicious intentions if such are present, prior to making any recommendations regarding a malicious complaint or false information.
Confidentiality is important in this entire process. Do not share information regarding the complaint, identity, or investigation on social media or in workplace forums.
Can You File a POSH Complaint Through the SHe-Box Portal?
SHe-Box Portal is an Online Complaint Management System for Complaints of Sexual Harassment of Women at the workplace in the Government of India. It helps in making complaint submission easy and linking the complainant with the concerned authority.
In case you are not sure which reporting channel to use, the website might help you locate the appropriate complaint procedure. You can visit the official portal at shebox.wcd.gov.in.
Keep in mind that SHe-Box is a digital reporting and management system, not an alternative to the investigation process that needs to be done by the right group according to the law.
What Can You Do If Your Employer Does Not Follow POSH Requirements?
A missing committee, confusion in the reporting process, or a mishandling of the grievance can make an employee lose direction for the next move. The first thing to do is to find out if there is an Internal Committee and also know where to report to.
Depending on the circumstances, you may consider:
- Contacting the relevant Local Committee if provided for by statute.
- Maintaining proper documentation of all correspondence and complaints regarding the treatment of your case.
- Clarifying the relevant procedures and any time limits imposed by statute.
- Soliciting independent legal advice if there are any problems with the process or your options.
In addition, there are employer obligations in relation to health and safety in the work environment. Failure to adhere to such requirements can have statutory implications.
How VakeelSaab Can Help With Workplace Harassment Concerns
It may not be easy to make the decision to file a complaint, especially if the other party is a higher-ranking colleague or your boss, or if you do not know how the investigation will be conducted. Talking to a lawyer will enable you to know how it will be done.
With VakeelSaab, one can get connected to a lawyer to seek legal consultation through phone, video, or chat. Depending upon your requirements, legal consultation can help you:
- Learn about your rights under the POSH Act and choose the appropriate complaint process.
- Gather documents and draft a description of the events that have taken place.
- Learn about what needs to be done in case an inquiry or complaint is already pending.
- Seek advice on deadlines, relief, and possible legal action.
If you have any doubts regarding what you need to do next, then get in touch with a lawyer via VakeelSaab.