The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the PoSH Act 2013, through its process and beyond guarantees confidentiality to all parties. This guarantee is especially important in ensuring complainants feel confident and comfortable filing their complaints of sexual harassment at the workplace.
PoSH law on confidentiality
The PoSH Act 2013 takes a strict stance on the need for confidentiality, As per Section 16, the identity of the parties i.e., complainant, respondent and witnesses, the content of the complaints, any information regarding the inquiry and outcome of the complaint are confidential and shall not be made public.
The law also has provisions for actions to be taken in violation of confidentiality. Section 17 of the PoSH Act 2013 prescribes penalties for breaching confidentiality, as defined in the service rules of the employer. As per Rule 13 of the PoSH Rules 2014, the employer shall recover a sum of INR 5000 as penalty from the person breaching confidentiality.
Maintaining confidentiality as Internal Committee (IC) members
The confidentiality requirement of the law also forms an important part of how the Internal Committee navigates their inquiry process. It is therefore imperative for the IC members to put strict processes in place to uphold confidentiality during an inquiry process. There are multiple ways this can be done, including:
- Limiting discussion of complaint: The PoSH Act states that only Internal Committee members shall be privy to information regarding complaints and parties to the complaint. If any specific information has to be shared beyond the Internal Committee for a specific purpose, the IC must ensure only required information relating to the complaint is shared.
- Confidentiality letters: Using confidentiality letters or non-disclosure agreements (NDAs) that clarify the expectations of the law and getting the same signed by all parties who receive information can also form an essential part of maintaining confidentiality. A confidentiality letter should include:
- Details of person to whom it is addressed
- Relevant provisions of the PoSH Act 2013 discussing confidentiality i.e. Section 5(16) of the PoSH Act 2013
- Consequences of breaching confidentiality i.e. Section 5(17) of the PoSH Act 2013 and Rule 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013
The IC must ensure that the confidentiality letters are shared with relevant parties early on during the investigation prior to sharing any information with them regarding the complaint.
For example, informing the immediate reporting manager when the complainant is availing interim protections such as leave, working from home is essential. In that scenario, information regarding the complaint having been filed is relevant but information such as the respondent, content of the complaint and outcome of complaint are not necessary. In addition, the IC must share confidentiality letters with the manager and all other parties that the IC speaks to.
Discussing confidentiality requirements with involved parties
As IC members, it is important that all involved parties in an inquiry are made aware of the confidentiality requirements as well as penalties under the law. These include the complainant, respondent, witnesses, HR, managers and any other member of the organisation with an awareness that a complaint has been filed. The IC must ensure that all persons who are to be made aware of the confidentiality requirements and are informed of the penalties for breaching confidentiality.
Confidentiality plays a vital role in the process of inquiry under the PoSH Act 2013. Hence, it is essential that the Internal Committee consistently build systems to prevent breach of confidentiality such as the confidentiality letter to ensure compliance with the law as well as ensuring the safety of all parties to a complaint.