Can an overseas member be part of an Internal Committee?Â
The Act is silent on appointing a foreign national to the IC. Due to the absence of any specific restriction to this effect, a foreign national residing in India may be permitted to be a part of an IC, provided they meet certain criteria set out in the Act.
Under the Act, this can be interpreted as the person who should be presently employed at the workplace by the employer. It can also be interpreted from the lens of whether the appointed person has an understanding of the social context in which sexual harassment has to be viewed and whether such an employee will be sensitized to the social realities in India and able to uphold the criteria.
When appointing an IC member, it is important to appoint a person who is sensitized to the social realities in India, who is available when the inquiry is ongoing, and who is accessible to employees who wish to reach out.
Can someone from the Internal Committee be appointed as the external member?
According to section 4 of the PoSH Act, an external member must be appointed who either has worked amongst non-government organizations committed to the cause of women or any person that is familiar with issues relating to women.
The external member is an essential part of any Internal committee as they provide an unbiased, neutral perspective. They are not involved or aware of any Internal company politics and employee relationships, and thus base their opinions and findings on the presented facts and circumstances.Â
It is essential to be mindful of these specific qualifications mentioned in Section 4(2) of the PoSH act to avoid legal liability.
In the case Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, it was opined that the absence of a member without the requisite qualifications given under the aforementioned provisions is deemed to contravene the PoSH Act and therefore illegal. Neglecting these qualifications can lead to the company being asked to reconstitute its ICC, as seen in the case Ruchika Singh Chhabra v. Air France wherein a lawyer with experience in labour laws was considered to be an inappropriate appointment for the role of the external member in the defendant company’s ICC.
Being an external member that is generally unknown to the workforce gives complainants and witnesses a sense of ease when talking about the harassment faced at the workplace. It alleviates the pressure of speaking to a person who is a constant presence at the workplace or has a predisposed bias towards or against the complainant.
Therefore, it is important to choose an external member who understands how gender plays into the power dynamics at the workplace and is sensitive to the same. They should not possess any negative preconceived biases and they should also have no personal relationship with any person in the workforce to not pose a conflict of interest.
What is the penalty for non-compliance with the PoSH Act?
An employer can be subjected to a penalty of up to INR 50,000/- for
- Failure to constitute IC
- Failure to act upon recommendations of the IC
- Failure to file an annual report to the District Officer where required
- Contravening or attempting to contravene or abetting contravention of the Act or Rules
Where an employer repeats a breach under the Act, they shall be subject to:
- Twice the punishment or higher punishment if prescribed under any other law for the same offense
- Cancellation/withdrawal/non-renewal of registration/license required for carrying on business
- All offenses under the Prevention of Workplace Sexual Harassment Act are non-cognizable
Can someone from HR be an IC member?
We do not recommend HR on the IC as sometimes employees cite this as company bias. However, it is understandable if HR is the only option if the company does not have any other female senior employees.
To whom should the Annual Report be filed? Who signs the report?
The company is expected to file one annual report at the end of the year. It is drafted on the company letterhead. It is signed by the presiding officer, IC members, and one director. It can be delivered in person or by post.
What if there is a bias among IC members… Can HR step in?
In case of bias, the particular IC member can be replaced. However, HR cannot intervene in the structure of the IC unless it’s been reported by either of the parties or the present IC members.
In a decision-making process, bias is considered the antithesis of a fair and just proceeding. Under the PoSH Act 2013, an Internal Committee by the foundation is enshrined to be free of any biases as they lead to a conflict of interest while impacting the outcome of the proceedings.
How can the company ensure that the IC is free from bias?
The composition of the committee should be checked when the case of inquiry has come for any upfront biases. For eg: If anyone in the committee is related to any party in any manner. Especially when it comes to the internal members.
Conduct specialized training of the members on the understanding of bias. Making IC members aware of the meaning of bias, various types of bias, triggering pointers for bias, and possible consequences of bias.
The responsibility of calling out bias should be incorporated within the IC at any instance. The external member can play an important role in this instance.
Any allegation of bias or conflict should be immediately and thoroughly reviewed, and the decision should be fully documented.
The company can have more than four trained members for their IC to avoid delay in the reconstitution of the IC if one or more members are conflicted in any way.