The Indian law on sexual harassment at workplace - i.e., Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”) - imposes many duties on the Employer (as defined below) to tackle cases of sexual harassment. It also imposes penalties on the Employer in case of contravention.
This playbook provides a checklist of various compliances required from the Employer by the Act and the Rules.
For any discussions, please email srishti.ojha@veristlaw.com and umang.arya@veristlaw.com. And remember this is not formal legal advice!
Key terms:
“aggrieved woman” - in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent.
“employee” means a person employed at a workplace for any work on 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, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
“employer” means any person responsible for the management, supervision and control of the workplace. “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation.
“respondent’ means a person against whom the aggrieved woman has made a complaint under the Act.
Let’s play:
Compliances required:
Duties of Employer
Formulate an internal policy on prevention of sexual harassment intended to promote gender sensitive safe spaces.
Constitute an ICC as per the provisions of this Act.
Provide a safe working environment at the workplace with should include safety from the persons coming into contact at the workplace
Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting the ICC under the Act
Organize workshops and awareness programs at regular intervals for sensitizing the Employees with the provisions of the Act and orientation programs for the members of the ICC. These workshops and programs should be conducted in such manner to fulfil below mentioned objectives –
widely disseminate an internal policy on prevention of sexual harassment intended to promote gender sensitive safe spaces
carry out orientation programs and seminars for member of ICC
carry out Employees’ awareness programs and create forum for dialogue
conduct capacity building and skill building programs for members of ICC
declare names and contact details of all members of ICC
use modules developed by state governments to conduct workshops and awareness programs for sensitizing Employees with provisions of the Act.
provide necessary facilities to the ICC, as the case may be, for dealing with the complaint and conducting an inquiry
assist in securing the attendance of respondent and witnesses before the ICC, as the case may be
make available such information to the ICC as it may require with respect to the complaint filed;
provide assistance to the woman if she so 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;
cause to 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
treat sexual harassment as a misconduct and initiate action for such misconduct
monitor the timely submission of reports by the Internal Committee
ICC should submit an annual report to the Employer and District Officer. The Employer should include in this annual report – the number of cases filed and their disposal. Specifically, this report should have –
number of complaints of sexual harassment received in the year
number of complaints disposed off during the year
number of cases pending for more than 90 days
number of workshops or awareness program against Sexual Harassment carried out
nature of action taken by the Employer
14. The Board’s Report of the company should also have a statement that the company has constituted the ICC as per the Act.
The procedure involved in any POSH proceeding –
1. Constitute an Internal Complaints Committee (“ICC”)
a. If there are different offices or administrative units at different places, constitute ICC at all such offices/units.
b. Members –
Presiding officer: should be a woman Employee employed at senior level at workplace. If senior level woman Employee is not available, appoint from any other office/administrative unit of the workplace and if there also such senior woman Employee is not available, appoint from different workplace of the same Employer or different department of the organization.
At least two members should be such Employees who are committed to the cause of women or who have had experience in social work or have legal knowledge;
One member should be from non-governmental organisations (“NGO”) or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment
At least half of the total members of the ICC shall be women.
Tenure of the members and the presiding officer should not exceed three years from date of their nomination to ICC.
c. You should pay fee or allowances to the member of ICC who is from NGO or other associations in following manner –
Allowance of 200 Rs. per day for holding proceedings of ICC.
Reimbursement of travel cost incurred in travelling by train (three tier air condition) or air condition bus and auto rikshaw or taxi, or actual amount spent by him on travel whichever is less.
d. The member of ICC can be removed, if he/she –
Discloses complaint details, complainant’s details, recommendations of the ICC to public, press or media in any manner except when done to show that justice is done to victim (without disclosing her name, address, identity or any other particulars which may be used to trace her identity)
has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him/her
he/she has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him
has so abused his/her position as to render his/her continuance in office prejudicial to the public interest
2. The procedure of complaint
a. The complaint has to be made within 3 (three) months from the incident unless extended by ICC.
b. The complaint has to be in writing.
c. If aggrieved woman is unable to make complaint – due to physical/mental incapacity or death or otherwise, following people may make a complaint –
her relative or friend; or
her co-worker; or
an officer of the National Commission for Women or State Women’s Commission; or
any person who has knowledge of the incident, with the written consent of the Aggrieved Woman.
d. If the Aggrieved Woman is unable to make a complaint on account of her mental incapacity, a complaint may be filed by:
her relative or friend; or
a special educator; or
a qualified psychiatrist or psychologist; or
the guardian or authority under whose care she is receiving treatment or care; or
any person who has knowledge of the incident jointly with the Aggrieved Woman’s relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care
e. If the Aggrieved Woman for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent.
f. If the Aggrieved Woman is deceased, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir.
3. The Conciliation
a. If before the initiation of inquiry, aggrieved woman requests, ICC should initiate conciliation proceedings to settle the matter.
b. Monetary settlement cannot be basis of conciliation.
c. If conciliation has happened, ICC should send the settlement report to the Employer. Also, it should provide copies to the Aggrieved Woman and the Respondent.
d. After settlement, there should be no further inquiry by ICC.
4. The Inquiry
a. ICC should start inquiry in following cases –
No conciliation is requested by Aggrieved Woman;
Conciliation has not resulted in any settlement; or
Complainant informs the Committee that any term or condition of the settlement arrived through conciliation, has not been complied with by Respondent.
b. If both parties are Employees, during course of inquiry, should be given an opportunity of being heard and a copy of the findings should be made available to both the parties enabling them to make representation against the findings before the Committee
c. The ICC has same powers as vested in civil court under Code of Civil Procedure, 1908 when trying a suit in respect of –
summoning and enforcing the attendance of any person and examining him on oath;
requiring the discovery and production of documents; and
any other matter which may be prescribed.
c. Inquiry should be completed within 90 days.
d. The entire manner of inquiry should be in consonance with the procedure laid down in rule 7 of the Rules.
5. Interim relief
ICC may recommend to Employer on written request of aggrieved woman to –
transfer the aggrieved woman or the respondent to any other workplace; or
grant leave to the aggrieved woman up to a period of three months; or
Prevent the Respondent from assessing Complainant’s work performance
Grant such other relief as may be appropriate
The Employer on receiving such recommendations, should implement them and give a completion report to the ICC.
6. Inquiry report
a. The ICC should submit the report to Employer and concerned parties within 10 (ten) days of completion of inquiry;
b. If allegations are not proved – recommendation of ICC should be – no action required.
c. If allegations are proved – recommendation of ICC should be –
to take action for sexual harassment as a misconduct, or
]to deduct such money from salary/wages of respondent and to be paid to the aggrieved woman or her legal heirs.
d. The Employer should act upon the inquiry report with 60 (sixty) days of receipt thereof.
6. Method to determine compensation to aggrieved woman
The ICC while determine compensation to be paid to the Aggrieved Woman, should have regard to following factors –
a. the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
b. the loss in the career opportunity due to the incident of sexual harassment;
c. medical expenses incurred by the victim for physical or psychiatric treatment;
d. the income and financial status of the respondent;
e. feasibility of such payment in lump sum or in instalments.
7. Appeal against the decision of ICC can be made within 90 (ninety) days.