Prevention of Sexual Harassment of women at the workplace - The P.O.S.H. Act and Key Concepts

Part-1

In the first part of this two-part article, we will discuss the scope of the POSH Act, and certain important definitions

Women’s safety, both within, and in relation to the workplace is of paramount importance and has a direct role to play in their participation in the workforce. As per a UNGC (United Nations Global Compact) India study, the female labour force participation in India has declined from 34% in 2006 to 24.8% in 2020. Several structural and socio-cultural factors contribute to this decline in, and lack of labour force participation of women in India; further, concerns regarding personal safety and the fear of being sexually harassed prevent women from seeking employment or cause them to leave the workforce, and perpetuates the systems that allow and benefit from their exclusion and oppression.

In its landmark judgment of Vishaka v. State of Rajasthan, the Supreme Court, recognizing the gap in legislation, framed guidelines to be followed by employers until an appropriate legislation was passed, and issued directions to the Union of India to enact a law for combating workplace sexual harassment. 16 years later, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development. The Rules under the Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”) were enacted shortly after.

SEXUAL HARASSMENT:

As per the Act, sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

(i) physical contact and advances;

(ii) a 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 sexual nature;

and also includes the following circumstances, among other circumstances, if it occurs, or is present in relation to any act or behaviour of sexual harassment:

(i) implied or explicit promise of preferential treatment in her employment;

(ii) implied or explicit threat of detrimental treatment in her employment ;

(iii) implied or explicit threat about her present or future employment status;

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her;

(v) humiliating treatment likely to affect her health or safety.

From the aforesaid definition of sexual harassment, it is understood that the crux of the matter is that where such an act is unwelcome, and irrespective of whether it is physical or verbal, express or implied, if it is of a sexual nature, it could amount to an instance of sexual harassment. This includes circumstances where the respondent (person against whom such a complaint has been made) abuses their power in the workplace to elicit sexual favours, etc., in exchange for advancement, or through threats of detrimental treatment; however, it is not limited to such instances. In determining what amounts to an instance of sexual harassment, a pedantic, limited approach cannot be taken, as stated by the Courts in many instances, and depends on the specific facts and circumstances in which the conduct has occurred.

WHAT IS THE SCOPE OF THE ACT?

The protection of the Act extends to a woman, of any age, in relation to a workplace, whether employed or not, who alleges that she has been subjected to an act of sexual harassment by the respondent. This includes a woman who is employed in a house or dwelling place (for remuneration in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any family member of the employer). Notably, the protection and redressal mechanism under the Act and the attendant Rules extends to women who are not employed at that particular workplace, for instance, even students, clients, customers, etc., may make a complaint in relation to that particular workplace. However, the protection of the POSH Act does not extend to individuals of other genders.

As per an NHRC report, about 92% of India’s transgender individuals are unable to participate in any economic activity, and it is no secret that LGBTQ+ individuals are consistently excluded from and discriminated against at the workplace. In the context of preventing and protecting other genders from sexual harassment or having a gender neutral framework, employers can take proactive steps towards incorporating measures for prevention, and redressal of instances of sexual harassment for non-female employees in the service rules that govern the organization.

It is important to note, however, that such a gender neutral policy for prevention and redressal of sexual harassment claims in the case of non-female employees cannot substitute the measures and mechanism mandated by the Act specifically for the protection of women. The Act mandates that a POSH mechanism be specifically created, and mandates compliances such as the submission of the Annual Report, etc., failing which a fine is liable to be imposed on the employer. The Act also confers the Internal Complaints Committee (“IC”) with certain powers, such as that of a civil court while conducting an inquiry. Although the IC can be empowered (through the organization’s internal policies) to conduct an inquiry into complaints pertaining to non-female employees, the same will not be protected under the POSH framework, and the IC cannot exercise the same powers (such as that of a Civil Court) in doing so as the ambit of the Act extends solely to women.

DEFINITION OF EMPLOYEE:

“Employee” is broadly defined and includes persons hired on a regular, temporary regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer. This is regardless of whether they were hired for remuneration or not, or working on a voluntary basis or otherwise, or whether the terms of employment are express or implied. The definition includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

DEFINITION OF WORKPLACE:

The definition of workplace under the Act has a wide scope. The definition encompasses the unorganized and organized sectors, and includes, among others, private sector organizations, ventures, and all kinds of establishments, societies, trusts, NGOs, hospitals, sports institutions, and places where service providers carry on commercial professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service, etc., and also includes dwelling places or houses.

With the proliferation of technology and other advancements, the idea that a workplace is solely a physical construct is obsolete. The doctrine of notional extension of employers’ premises, which in the context of beneficial labour legislations (such as workmen’s compensation) accounts for circumstances where the workplace extends beyond its physical perimeters, has been extended to the POSH Act as well; any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey form part of the ambit of what constitutes the workplace. In keeping with the concept of the ‘extended workplace’, it can be concluded that even conferences, or business trips/ outings, etc. may reasonably be covered within its ambit.

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Delhi High Court observed that the following factors would have to be considered in determining if a particular place can be considered a “workplace”:

· Proximity from the place of work;

· Control of the management over such a place/residence where the working woman is residing; and

· Such a residence has to be an extension or contiguous part of the working place.

INTERNAL COMPLAINTS COMMITTEE & LOCAL COMMITTEE

The Act lays down provisions for setting up a grievance redressal mechanism.

INTERNAL COMPLAINTS COMMITTEE

Every employer is required by law to set up an ‘Internal Complaints Committee’, by order, at each office or branch, of an organization employing 10 or more employees, to inquire into and redress grievances pertaining to sexual harassment.

LOCAL COMMITTEE

At the District level, a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector is required to be designated as District Officer, for redressing grievances pertaining to women in the unorganized sector, or where the complaint has been levelled against the employer, or in an establishment with less than 10 employees on account of which no IC has been set up.

DUTIES OF EMPLOYERS:

In addition to instituting the mechanism as laid down in the Act, employers are duty bound to take the following measures, among others:

(i) provide a safe working environment at the workplace which includes safety from the persons coming into contact with the workplace;

(ii) display the penal consequences of sexual harassment at a conspicuous place in the workplace;

(iii) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the IC in the manner as may be prescribed;

(iv) provide assistance and necessary facilities to the IC or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(v) provide assistance to the woman if she chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;

(vi) initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(vii) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

(viii) monitor the timely submission of reports by the IC.

In addition to sensitizing the workforce, employers can incorporate clauses pertaining to POSH policies and measures, and the consequences violating the same, in the agreements entered into with their employees, consultants, etc., thereby indicating that the employer has a zero tolerance approach to such instances.

In the next part of this Article we will discuss the constitution of the Internal Committee, and the redressal mechanism under the Act.