One labor law, which most entities are found to not comply with is The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (“POSH”), which was notified in 2013.
The law and its compliance applies to every entity which has 10 people or more people, be it in the form of staff, employees, workers, interns, contracted labour or by any name called.
Each employer is required to file an Annual Compliance Report (ACR) every year as per the law with the concerned District Officer as well.
Details of compliance under this law are as under.
Mandatory Requirements under POSH
1. Drafting of a Policy for Prevention of Sexual Harassment at the Workplace
2. Setting up and formalizing an Internal Complaints Committee (IC) to handle related complaints
3. Appointment of an External Member with knowledge on POSH as a member in the IC
4. Proving regular training to employees on POSH
5. Filing of the Annual Compliance Report with the District Officer
6. Reporting on the IC's functioning and other related matters in the Director's Report filed with ROC (in case of companies)
7. Changing Employment Contracts to reflect compliance with POSH
Contents of a POSH Policy Document
1. Objectives of the Policy: Making a safe work environment for women at the workplace, and ensuring all compliance is made with the law to imbibe the spirit of the law and not just for the purpose of documentary compliance
2. Applicability: Details on who all does the policy cover and the places where it applies, including and not limited to office, homes (work-from-home), other sites of work. The policy should specify that it covers all people engaged in the work of the enterprise including interns, contractual staff, part-time workers, consultants, etc. While the law covers only females as victims, a company should aim to make the policy as gender neutral as possible and include men too.
3. Defining Sexual Harassment: This has to be the most detailed and carefully drafted part of the Policy, to clearly mention all acts which may tantamount to sexual harassment of various degrees.
4. List of Do's and Don'ts: A list of acts permissible or impermissible should be laid out in as much detail as possible, and an attempt should also be made to display such lists on display boards and ensure that the people working are trained in recognizing them as well as understanding what constitutes acceptable or unacceptable decorum.
5. Organogram of the IC: Define how the IC will be constituted, members will be appointed, external member be included - with rights, responsibilities of all such members. The details of current IC members must be included with their professional profiles.
6. Processes: Define all procedures and processes to be followed by the following:
a) Aggrieved at the time of the incident and on how to raise a complaint
b) IC members on how to handle an incident in an unbiased manner, lawfully and respectfully
c) Investigation process, questionnaire to be followed, manner of summons and examination
d) Proofs considered as valid, validity of oral claims, etc.
7. Penalties and Repercussions: The penalties, fines, repercussions for degree of harassment should be defined, which might include expulsion from the office or even filing of a criminal complaint. Further, it would be important to specify if there are any compensation methods towards the complainant, and in which case would such provisions kick in.
8. Confidentiality: Concerns around confidentiality must be clearly spelled out, covering not just the complainant but witnesses, investigation process, etc.
9. Employment Terms: Terms which may be added to all employment contracts may also be defined herein and then taken as a base to execute with all employees or contracted consultants and workers of the entity.
Constitution of the Internal Complaints Committee (IC)
1. No. of Members: The IC shall attempt to have the following as members to be valid:
a) 1 Presiding Officer - female employee of seniority in experience, age or designation
b) 2 Employee Members - two additional employees as members
c) 1 External Member - a person of repute and integrity, who has knowledge of laws for protection of women - could be lawyers, counsellors, social workers, etc.
2. Term: Each member can hold a term up to 3 years
3. Women Representation: 50% of the IC must be female members
4. Roles of an External Member:
a) Play an active role in Policy formulation
b) Unbiased in their approach to handling complaints
c) Provide legal or professional inputs on matters
d) Assist with legal documentation of the IC's proceedings - minutes of the meeting, Annual Return filing, drafting of investigation orders, etc.
Annual Compliance Report
As per Section 21 of the POSH Act 2013, "the Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer."
The report should be filed in January, immediately after the close of the financial year.
The basic contents of the report are as follows:
a) Organization Details - name, address, registration number, principal employer
b) Total number of sexual harassment complaints received
c) Total number of complaints investigated and completed
d) Total number of complaints under investigation for over 90 days
e) Total number of employees and the number which has been trained on POSH during the year
f) Any action taken against the culprit by the entity or by the District Officer
The organization should also additionally attach the following information to the Annual Return after vetting by a professional organization:
a) POSH Policy Document
b) Details of IC Members
c) Detail of workshops conducted during the year on POSH awareness
Repercussions of Non Compliance with POSH
1) If the IC is found to be not properly constituted, all complaints may be directed by the Courts to the Local Complaints Committee and all complaints may have to undergo fresh investigation again
2) A fine of Rs. 50,000 may be imposed on the entity if POSH is not complied with. The penalty may be double in case some offences are found to be repeated.
3) The business license may also be cancelled for the entity in case of continued non-compliance
