In 1992, Bhanwari Devi, a government-employed social worker in rural Rajasthan was gang-raped by men who were angered by her attempt to prevent a child marriage. The horrific incident sent ripples through and sparked a conversation in India about the safety of women in the workplace.
This incident led to the creation of the first-ever guidelines regarding workplace sexual harassment in India through the Vishaka guidelines. The Vishaka guidelines were formulated by the supreme court of India through the case of Vishaka v. State of Rajasthan, where various non-governmental organisations raised questions about the safety of women in the workplace.
The stance towards workplace sexual harassment was further formalised in 2013 when India implemented the Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act 2013 (“PoSH Act”) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“PoSH Rules”). The law was to be implemented by workplaces to increase female representation in the workplace and create safe spaces.
Breaking down the PoSH Act 2013: Employer’s responsibilities
The core purpose of the PoSH Act 2013, is to create certain compliance requirements for employers in India that ensure safe workplaces.
The implementation of the PoSH Act 2013 is compulsory for all employers with 10 or more employees.
The compliances for employers under the PoSH Act include:
- Implementing a Prevention of Sexual Harassment policy
Employers are required to implement a policy regarding workplace sexual harassment as per Rule 13(a) of the PoSH Rules.
The policy needs to be separate from other policies, echo the organisation’s commitment to prevention of sexual harassment and clarify various points of the PoSH Act such as the Internal Committee (IC), the inquiry process and other nuances to the implementation of the Act.
In addition to creating and implementing the PoSH policy, the Rule expects that employers “widely disseminate” the Policy. This includes placing the PoSH Policy on the common notice board, and circulate the policy virtually.
The law expects that employers explicitly call out sexual harassment as misconduct under the company’s HR Policies, as per Section 13(i).
While the act is gender-specific and only takes up complaints from women employees, organisations often choose to implement a gender-neutral policy internally. A gender-neutral PoSH policy allows a person, irrespective of their gender to file a complaint of sexual harassment.
Learn more about creating a robust PoSH policy here.
- Forming an Internal Committee (IC)
Employers are required to form an Internal Committee to receive and redress complaints of sexual harassment at the workplace, as per Section 9 of the Act.
The Internal Committee shall have the following members:
- A presiding officer, who is a woman employee in a senior position in the organisation
- At least two Internal Committee members, who are members of the organisation
- An external member, who shall be an expert in the topic of gender and the law
The IC composition shall have not less than 50% women members.
To learn more about how to set up an Internal Committee in your organisation, click here.
- Capacity building training for Internal Committee members
Once the IC is formed, the internal members will have to be trained adequately every calendar year as per Rule 13(d) of the PoSH Rules 2014.
The training is essential for the Internal Committee members to understand the process under the PoSH Act 2013 and identify their role in the prevention, prohibition and redressal of sexual harassment in the workplace.
- Displaying Internal Committee details
Under Section 19(b) and Rule 13(e), employers are legally required to display the order of the organisation constituting the IC as well as the penalties of sexual harassment in the workplace.
Creating awareness about the Internal Committee and penal consequences can be done in the form of posters around the office and distributed virtually, as well.
- Awareness sessions for employees
Under Rule 19(c), the employer must conduct awareness sessions for all employees regarding sexual harassment at the workplace every calendar year. This training covers all employees. Even employees who have undertaken the training in the past need to attend refreshers.
Given the Act’s definition of employee, the training will have to be extended to interns, consultants, contract workers and any other person who may not have direct employee status but does access the workplace, to ensure that safety at the workplace is ensured, from all perspectives.
To learn more about conducting effective awareness training for employees, click here.
- Annual report
To check on compliance with the PoSH Act 2013, Section 21 requires employers to submit an annual report at the end of every calendar.
The annual report shall include:
- Complaints of sexual harassment received and addressed by the IC in the year
- Cases pending for more than ninety days
- Information about awareness programmes conducted
- Nature of action taken by the employer or District Officer
Learn more about what to include and who to submit the annual report to here
Non-compliance with the PoSH Act 2013
Section 26 of the Act states that in the case of failure to form the Internal committee, take action or violate or attempt to violate any provisions of the Act, the employer shall be liable for a fine of INR 50,000 for the first instance.
In addition to the penalty, courts in India have awarded compensation to parties in amounts significantly higher than the penalty. In 2017, the Madhya Pradesh High Court awarded compensation to the tune of INR 25 lakhs to a complainant, in addition to the penalty where the employer had failed to form an Internal Committee.
In case of repeated instances of non-compliance, the employer may be liable for twice the penalty of the first instance, penalties under other laws. The PoSH Act also allows for the cancellation, withdrawal or non-renewal of the business licence, preventing the employer from conducting their operations in India.