What are the steps taken when a case is filed?
POSH Act provides that both the parties involved, the complainant and the respondent, must be given a fair opportunity to present their side of the story, and the respondent should be allowed to cross-examine the witnesses involved in the sexual harassment case. POSH Act mandates that while the inquiry happens, the Internal Committee (IC) members must adhere to the ‘principles of natural justice’.
The IC should investigate any written complaint of sexual harassment received from a complainant against any employee of the organization. The IC should ensure that six copies of the complaint along with supporting documents (if any) and a list of witnesses are given. The complainant can hand over the complaint to any of the IC members which has to be forwarded to the presiding officer within 3 days of the receipt.
The following are things that an IC member can keep in mind while evaluating a case:
- Respond to the complainant with empathy
- Ensure that confidentiality is maintained
- If there is a physical threat to the complainant, ask if they wish to file a police complaint
- Strictly follow the timelines mentioned in the act
- Keep the complainant and respondent updated about the timelines
- Record and document all meetings
What is the penalty if someone is found guilty under the PoSH act?
An employer may punish an employee in the following ways for engaging in sexual harassment under the POSH Act:
- The punishment prescribed under the organization’s service rules
- Reduction of the respondent’s wages to pay compensation to the aggrieved woman (Section 13 of the POSH Act).
In the absence of service rules in the organization, disciplinary action may include
- Formal apology
- Counseling
- Written warning to the Respondent
- Change of work assignment/transfer for either the Respondent or the Complainant
- Suspension or termination of services of the employee found guilty of the offense
- Withholding of promotion
- Reduction to a lower stage of pay
- Withholding of increments of pay
- Removal or Dismissal from service
The POSH Act, under Section 15, also provides for compensation for aggrieved women. In determining compensation, the following factors must be taken into account:
- Affected employee’s mental trauma, pain, suffering, and emotional distress;
- The loss of career opportunities caused by sexual harassment;
- Physical and mental health treatment expenses incurred by the victim;
- Whether the alleged perpetrator has a high income or a high status; and
- Whether lump sum or installment payments are feasible.
- A failure by the respondent to pay the aforesaid sum will result in IC forwarding the order of recovery to the district officer concerned.
What is the penalty for filing false complaints under the PoSH act?
In case the complaint is found to be intentionally false and malicious, the complainant is liable for appropriate corrective action. Under Section 14, actions will be taken against complainants who “falsely or maliciously” use the protections.
According to the POSH Act, disciplinary action can be taken under the service rules of the organization against a complainant whose allegations are false, malicious, or made with knowledge that they are untrue.
The statute provides for disciplinary actions when no service rules exist, including written apologies, warnings, reprimands, censure, withholding of promotion, withholding of raises and increments, terminating employment, attending counseling, and performing community service. It is further clarified in the POSH Act that a complaint need not be false or malicious just because there is insufficient proof to support it.
In cases where there is insufficient evidence to prove that harassment has taken place then IC would deem the complaint not proven and not file the same as a false complaint and the complainant will not be liable.
What is PoSH training?
PoSH training is focused on the prevention and redressal of sexual harassment of employees in the workplace.
PoSH has awarded rights to the employees which helps protect the rights of both parties. This is essential information since most sexual harassment redressal proceedings are conducted without the presence of legal counsel. Such crucial information must be given out to the employees so that they are aware of their legal rights.
The PoSH training helps the employees to understand the redressal procedure, and empowers them to point out wrong practices during an IC proceeding. Sexual harassment training ensures that the PoSH Act and its provisions are not used as a tool of retribution and that employees are protected from false complaints.
The training is a very important tool for the IC (Internal Committee) members to understand the best redressal practices. It’s important for the IC members to understand the principles of natural justice, for them to ensure that IC proceedings are unbiased, maintain the privacy of all complaints, and ensure that individuals are not held guilty before an in-depth investigation finds them guilty of the acts they are being accused of.
The PoSH training is to be designed under the guideline in the Rules. It includes
- What is sexual harassment?
- How to seek help if they face sexual harassment
- Who to report to if they face or observe sexual harassment
- What are the rights of the employee – Confidentiality, interim protection among others
Undertaking rigorous and periodic anti-sexual harassment training also sends out a strong message from the top to the workforce that the Company is taking a strong stand against sexual harassment.