PoSH Act: 9 Things Women Must Know About Reporting Sexual Harassment At Workplace

It is not enough that women have to fight gender inequality and pay parity, but many also have to face workplace harassment, some more than once. Did you know that when the world was shut during the Covid-19 pandemic, there was a sharp rise in not only domestic violence cases but also workplace sexual assaults?

According to the National Commission for Women, online harassment spiked five times over the period where perpetrators found a new way to breach the privacy of female employees. In fact, in the USA, as close as 60% of working women have reported harassment at the hands of their fellow colleagues.

To tackle the issue of Sexual Harassment of Women at Workplace, the PoSH (Prevention, Prohibition and Redressal) Act came into force in 2013. Here are the details shared by our expert, Archana Khosla Burman, Founder Partner, Vertices Partners.

What exactly is the PoSH Act?

In India, sexual harassment of women at the workplace is governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and the Indian Penal Code, 1860.

The intention of the legislature behind enacting the PoSH Act was to protect against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment.

Every Company Is Compelled To Have A Committee For PoSH

The PoSH Act applies to every employer, and the definition of the workplace under the act is inclusive and deliberately kept wide. It includes all organisations irrespective of their constitution including public limited companies, private limited companies, limited liability partnerships, partnership firms, trusts, societies, associations, proprietorships, and government departments and undertakings.

Any hospitals, nursing homes, sports institutes, stadiums,or any place visited by the employee arising out of or during the course of employment are also included in the definition of the workplace and hence POSH is applicable there as well. However, any workplace which has less than 10 employees is not required to form an internal complaints committee.

9 Things About PoSH Women Must Know

1. Definition Of Sexual Harassment

The PoSH Act provides a broad and inclusive definition of sexual harassment, which includes unwelcome sexual behaviour, whether directly or by implication, such as

(i) physical contact and advances

(ii) demand or request for sexual favours

(iii) making sexually coloured remarks

(iv) showing pornography

(v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Whether any particular act or behaviour would amount to ‘sexual harassment' will depend on the facts and circumstances of the situation. Any form of sexual intimidation or discrimination or behaviour, which tends to attract harassment only on account of sex, can also be characterised as sexual harassment.

Further, acts such as commenting on the complainant’s dress and outfits, suggesting that one would make work difficult for the employee if “she was not good to him”, speaking in a manner which was offensive to her dignity and chastity etc., has also been constituted by several judicial precedents as constituting sexual harassment.

It was also observed in one of the cases that a complaint under the PoSH Act, is maintainable even against a person belonging to the same gender as that of the complainant. In other words, a complaint under the PoSH Act is maintainable against women as well.

2. Aggrieved Woman

In order to file a complaint, the aggrieved woman need not be directly employed by the organisation. Even if she visits any workplace where she faces an incident of sexual harassment, she can file a complaint with the internal complaints committee of such organisation.

The term ‘aggrieved woman’ has been defined under the PoSH Act to mean

(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent

(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

3. Definition Of Workplace

The workplace is not confined to any physical space or office of the employer. It also extends beyond the office premises to any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.

4. Who Can File Complaint

Under the PoSH Act, friends, relatives, co-workers, psychologists, and psychiatrists, etc. are also permitted to file the complaint in situations where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity or death.

5. Provision For False & Malicious Complaints

If the internal complaints committee or local complaints committee concludes that the allegation made by the complainant is false, disciplinary action such as written apology, warning, reprimand, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session may be taken.

However, the mere inability to substantiate a complaint or provide adequate proof need not mean that the complaint is false or malicious.

6. First Step A Woman Should Take After Sexual Assault In Office

When a woman faces sexual assault, she needs to promptly report the incident to the internal complaints committee (ICC) or the local complaints committee (LCC) (as the case may be).

An aggrieved woman who wishes to file a complaint against sexual harassment is required to submit six copies of the written complaint, along with supporting documents and names and addresses of the witnesses to the ICC or the LCC (as the case may be), within three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.

Thus, after a complaint of sexual harassment has been lodged, the aggrieved woman may request the ICC or the LCC (as the case may be) to resolve the matter by conciliating between the parties before the commencement of the inquiry proceedings.

However, monetary settlement should not be made as a basis of conciliation. Once a settlement has been arrived at, the ICC or LCC shall not proceed with an inquiry under the PoSH Act.

7. What If Offences Might Not Have Any Proof

Some offences like staring, touching, hand or face gestures and verbal abuse might not have any proof. It could be a case of the victim's word against the accused. Even in such a case, an aggrieved woman should report the incidents to the ICC.

ICC should take cognisance of the incidents and try to address the incident with the accused or issue a warning to the accused. The accused will be cross-questioned on the basis of the complaint filed by the aggrieved woman and the ICC will need to make a judgement based on the responses of the accused.

In the absence of any direct evidence, the aggrieved woman will need to produce at least some corroborative evidence supporting her claims. For instance, in the case of verbal abuse, the aggrieved woman can record the verbal abuse on her phone in order to substantiate the claims.

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8. What If The Company Does Not Have A Committee

If an employer fails to constitute an ICC or does not comply with the requirements prescribed under the PoSH Act, a monetary penalty of up to ₹50,000 may be imposed.

A repetition of the same offence could result in punishment being doubled and/or cancellation of business licence or withdrawal, or non-renewal, approval or cancellation of the registration (as the case may be), by the Government or local authority.

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9. What If The Company Fails To Take Actions Against The Accused

In the event the ICC/company fails to address or hear the complaint, the aggrieved woman can refer the complaint to the LCC constituted under Section 6 of the PoSH Act.

The aggrieved woman can also file a complaint under Section 354 (outraging the modesty of a woman), Section 354-A (sexual harassment by a man), Section 354-B (assault or use of criminal force to woman with intent to disrobe), Section 354-C (voyeurism), Section 354-D (stalking), and Section 509 (insulting the modesty of a woman) of the Indian Penal Code, 1860 with the local police station having jurisdiction.

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