What is the Sexual Harassment in General Sense?
Sexual harassment is unwelcome sexual behavior which is offensive, humiliating or intimidating. It can be written, verbal or physical, and can happen in person or online.
Sexual Harassment creates an insecure and hostile work environment, which discourage women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. With this idea the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.The need for such legislation was observed first time by the Supreme Court, in Vishaka v State of Rajasthan.
Brief Analysis of the POSH Act and Rules
Sexual harassment results in violation of the fundamental rights of women to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
The protection against sexual harassment and the right to work with dignity are universally recognized human rights by international convention and instruments. Thus it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at work place. An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. The Act extends to whole of India.
The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgment. As per the POSH Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, such as
(i) physical contact and advances,
(ii) demand or request fsor sexual favours,
(iii) making sexually coloured remarks,
(iv) showing pornography, or
(v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
The following circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:
· implied or explicit promise of preferential treatment in employment;
· implied or explicit threat of detrimental treatment in employment;
· implied or explicit threat about present or future employment status;
· interference with work or creating an intimidating or offensive or hostile work environment; or
· humiliating treatment likely to affect the lady employee’s health or safety
Applicability and Forming of Committees
The important feature of the Act is that it envisages the setting up of Internal Complaints Committee (ICC) at every office of the organisation or institution, having more than 10 employees, to hear and redress complaints pertaining to sexual harassment.
Where the number of employees are less than 10, the Act provide for setting up of Local Committee (LC) in every district by the District Officer. The committee while inquiring into such complaint shall have the same power as vested in a civil court.
What is the process of Grievance Redressal?
An aggrieved woman can file a written complaint to ICC/LC
· from three months from the date of the incident and
· in case of series of such incidents within three months from the last such incident.
However, any delay in filing the complaint can be condoned by the committee upto further three months.
In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other person as described in Rule 6 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“the Rules”) may make a complaint.
Punishment and Compensation
The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:
· punishment prescribed under the service rules of the organization;
· if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and
· deduction of compensation payable to the aggrieved woman from the wages of the respondent.
The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:
· the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
· the loss in career opportunity due to the incident of sexual harassment;
· medical expenses incurred by the victim for physical/ psychiatric treatment;
· the income and status of the alleged perpetrator; and v. feasibility of such payment in lump sum or in installments.
Duties of Employer
- Provide a safe working environment
- Display at the workplace, details of: the penal consequences of indulging in acts of sexual harassment, composition of the ICC, the grievance redressal mechanism available to aggrieved employees
- Organize workshops and awareness programs for sensitizing employees
- Organizing orientation programs for members of the ICC
- Cooperate and assist during the course of the inquiry
- Treat sexual harassment as misconduct under the service rules
- Provide assistance to the aggrieved employee, should she choose to file a police complaint;
- Initiate action under the IPC or such other applicable law
- Ensure timely submission of reports to the District Officer
Annual Report
As per Prevention of Sexual Harassment Act, 2013, there are 2 reports to be submitted by the employer:
- 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.
- Disclosure in Annual Returns to be filed with ROC
- It is mandatory to disclose that the company has implemented the provisions of the Sexual Harassment Act.
- It is compulsory to make a statement in the Director’s Report that it has complied with the provisions regarding the constitution of the Internal Complaints Committee (ICC).
Penalty Provisions
An employer can be subjected to a penalty of up to INR 50,000 for:
- Failure to constitute Internal Complaints Committee
- Failure to act upon recommendations of the Complaints Committee; or
- Failure to file an annual report to the District Officer where required; or
- Contravening or attempting to contravene or abetting contravention of the Act or Rules.
Where an employer repeats a breach under the Act, they shall be subject to:
- Twice the punishment or higher punishment if prescribed under any other law for the same offence.
- Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.
Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.
Practicing Company Secretary, M.Com and Commerce Graduate and founder at Shaffy Mehta & Co. She is having an overall 4 years experience of Company Law and other Corporate Laws.