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Chapter XVI - Prevention of Sexual Harassment (POSH) at Workplace

To enable a safe working environment for women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Rules (collectively known as POSH Laws) have been enacted and passed by the Ministry of Women and Child Welfare, in the year 2013. This law is applicable to every workplace, establishment, company, and organisation, inclusive of MNCs, firms, shops, restaurants, etc.

Applicability

The Prevention of Sexual Harassment (POSH) at Workplace Act is applicable to every workplace, establishment, company, or organisation (including NPO) employing ten or more employees (full time, part time, interns or consultants included) irrespective of its location or nature of industry.

Compliance under POSH

  1. Committee: Each organisation with more than ten employees is required to form an Internal Complaints Committee (ICC) headed by a female presiding officer

  2. Policy: Formulation of an internal POSH policy for the prevention and redressal of sexual harassment at workplaces

  3. Training Programme: Orientation and training programmes are also required to be carried out by the organisation

  4. Annual Report: The organisation is also required to file an annual report (with District Collector) with information of the number of sexual harassment complaints received in a year, the number of complaints disposed of in a year, cases pending for more than 90 days, etc.

Reporting under Directors Report

The Ministry of Corporate Affairs, through a Notification dated July 31, 2018, amended the Companies (Accounts) Rules 2014, in accordance with the request made by the Ministry of Women and Child Welfare. By this amendment, it is now mandatory to disclose that the company has implemented the provisions of the Sexual Harassment Act. It is now compulsory for a company 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). Trusts and societies as also Section 8 companies may also adopt this practice. This amendment comes as a major step towards making the workplaces in the private sector safer for women, thereby casting higher responsibility on the board of directors to ensure compliance under the POSH Laws. Penal provisions that ensue in case of non-disclosure under Section 134 of the Companies Act will now be levied in the matters of non-disclosure of the implementation of the Sexual Harassment Act as well.

Internal Complaints Committee

Every employer is obliged to constitute an Internal Complaints Committee (ICC) through a written order. The ICC should be composed of the following members:

a. Presiding Officer who must be a woman employed at a senior level at workplace. She must be from amongst the employees;

b. Two Members from amongst employees who are committed to the cause of women or who have had experience in social work or have legal knowledge.

c. One Member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment ('External Member').

The law also requires that at least half of the total Members of the ICC should be women.

Sexual Harassment at Workplace Policy

Employers/District Officers are responsible for complying with prohibition, prevention, and redress of workplace sexual harassment. In practice, this means having a policy that:

  1. Prohibits unwelcome behaviour that constitutes workplace sexual harassment;
  2. Champions prevention of workplace sexual harassment through orientation, awareness, and sensitisation sessions, and
  3. Provides a detailed framework for redress.
Dissemination of Information and Awareness Generation

Employers/ District Officers have a legal responsibility to:

  1. Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment, and provides a detailed framework for prevention, and redress processes
  2. Carry out awareness and orientation for all employees
  3. Create forums for dialogue i.e., Panchayati Raj Institutions, Gram Sabhas, Women's Groups, Urban Local Bodies or like bodies, as appropriate
  4. Ensure capacity and skill building of Complaints Committees
  5. Widely publicise names and contact details of Complaints Committee members
Annual Report

As per Prevention of Sexual Harassment Act, 2013, there are two reports to be submitted by the employer:

a. 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

b. The employer has a statutory obligation to ensure this report is included in the annual report of the organisation filed with the Registrar of Companies.

As per the Act the Internal Committee or the Local Committee shall in each calendar year prepare, in such form and where may be prescribed, an annual report and submit the same to the employer and the District Officer. The District Officer will forward a brief report on the annual reports to the appropriate State Government. Such reports must include the following information:

  1. Number of complaints received

  2. Number of complaints disposed of

  3. Number of cases pending for more than 90 days

  4. Number of workshops/awareness programmes carried out

  5. Nature of action taken by the employer/District Officer

The Report of ICC will be forwarded to the District Officer through the employer.

Section 22 - Employer to include information in the annual report

As per the Act: "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 the organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer."

The latest Director's Report submitted under the Companies Act has a section to capture the compliance to the POSH Act, 2013. This report is filed along with the annual returns to the Registrar of Companies.

Penalty provisions

An employer can be subjected to a penalty of up to Rs 50,000 for:

  1. Failure to constitute Internal Complaints Committee

  2. Failure to act upon recommendations of the Complaints Committee, or

  3. Failure to file an annual report to the District Officer where required, or

  4. 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:

  1. Twice the punishment or higher punishment if prescribed under any other law for the same offence

  2. Cancellation / Withdrawal / Non-renewal of registration / license required for carrying on business or activities

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