Salient Features of the PoSH Act Every Workplace Must Know

Statistics show that around 37% of women reported sexual harassment in the workplace and that it remains a pervasive problem. Understanding and implementing the PoSH Act is not just legally mandated but also ethically imperative. This blog will cover the salient features of the PoSH Act to help you build a sexual harassment-free workplace and protect organisations from potential legal ramifications.

Section 2 of the PoSH Act contains some key definitions as mentioned below:

1. Aggrieved Woman 

According to Section 2(a), an aggrieved woman is defined as:

(i) 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;

(ii) In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

2. Respondent

According to Section 2(m), a respondent is defined as a person against whom the aggrieved woman has made a complaint.

3. Employer

According to Section 2(g), an employer is defined as:

(i) In relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf.

(ii) If any workplace is not covered under sub-clause (i), any person responsible for the management, supervision, and control of the workplace.

4. Employee

According to Section 2(f), an employee is defined as a person employed at a workplace for any work on a 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 expressed or implied and include a co-worker, a contract worker, probationer, trainee, apprentice, or called by any other such name.

5. Internal Complaint Committee

According to Section 4, the Internal Complaint Committee is defined as:

A committee constituted by the employer who has 10 or more employees at each location should consist of:

(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior-level female employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1):

Provided further that in case the other offices or administrative units of the workplace do not have a senior-level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

(b) not less than two Members from among employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) One member from a non-governmental organisation or association is committed to the cause of women or a person familiar with the issues relating to sexual harassment.

6. Workplace 

According to Section 2(o), workplace includes:

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled, or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company a corporation, or a co-operative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, nongovernmental organisation, unit, or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution, or service;

(iii) hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey;

(vi) a dwelling place or a house.

1. Adequate Time Frame to File a Complaint

The PoSH Act mandates that complainants file a complaint within three months of the incident, or the last incident in cases of multiple occurrences. The proposed amendment extends this period to one year and allows for further boundless extension, provided the complainant has justifiable reasons, recognising that aggrieved women may require additional time to report incidents. This proposed amendment aligns with the structured complaint process available under workplace sexual harassment law in India.

2. Ensuring Time-Bound Inquiry and Resolution

To avoid delays, the law has a time-bound inquiry process:

• After an ICC receives a written complaint, it has 90 days to finish its inquiry.
• Following the ICC’s recommendation report, the employer must take the necessary action within 60 days.

The law’s specified timeframe for PoSH Act compliance ensures both speedy and fair outcomes for complainants and respondents.

3. Confidentiality of Proceedings

Confidentiality is a critical aspect and requirement of the PoSH Act for compliance. The law prohibits:

• Disclosure of the complainant’s identity.
• Details of the complaint.
• ICC proceedings.

Confidentiality is upheld by the Act to shield people from retaliation, prejudice at work, or needless scrutiny. This is of utmost importance considering that India has documented over 400 instances of sexual harassment at work every year since 2018, with 419 cases reported in 2022 alone, as per the National Crime Records Bureau (NCRB).

4. Alternative Resolution Through Conciliation

Section 10 of the PoSH act offers a built-in mechanism for alternative redressal, enabling the aggrieved woman to settle her complaint through mutual agreement without promoting misuse of the law. Currently, the law permits conciliation before a formal inquiry if the complainant desires an informal resolution. However, monetary settlements are strictly forbidden to prevent misuse. 

Due to the risk of coercion, an amendment that is yet to be implemented by the Central Government seeks to remove this section in its entirety, ensuring that all complaints are resolved fairly and transparently.

5. Interim Relief for the Complainant

The law provides a provision for interim relief on the request of the aggrieved woman to help them circumvent the discomfort during the course of the inquiry.

• It allows a relevant entity to transfer either the complainant or the respondent.
• Under this provision, the complainant may obtain a maximum period of three months’ leave.
• The law prohibits professional engagement between both parties at their workplace.

These enforcement provisions ensure PoSH compliance and provide a safe environment for employees to pursue their cases.

6. Fair Inquiry Based on Principles of Natural Justice

The PoSH Act upholds the principles of natural justice, ensuring a fair process through three key components:

• Every party maintains equivalent possibilities to demonstrate evidence to support their case.
• Parties can dispute all identifying facts and allegations which have been made against them.
• The management needs to hear both parties before making final decisions. 

This procedural system maintains PoSH Act compliance and eliminates biased judgments.

7. Lower Burden of Proof for Complaints

The PoSH act pertaining to sexual harassment cases utilises the ‘preponderance of probability’ standard, rather than the stricter ‘beyond a reasonable doubt’ standard used in criminal cases. This means that a complaint is more likely to be supported if the evidence suggests that sexual harassment occurred. This approach ensures that legitimate cases are not dismissed due to overly rigid legal requirements.

8. Monetary Compensation for the Aggrieved Woman

Apart from taking disciplinary action against the respondent, the ICC can recommend monetary compensation for the complainant to cover the following:

• Mental and emotional distress.
• Loss of career opportunities due to sexual harassment.
• Psychological trauma-related medical expenses.

This provision underscores the importance of PoSH Act compliance by providing victims with appropriate compensation for the inflicted harm. Do note that the aggrieved woman cannot demand monetary compensation and the same is at the discretion of the ICC only.

9. Safeguards Against False or Malicious Complaints

The PoSH Act ensures that all parties in the workplace are protected. It does this by maintaining a balance between strict penalties for false and malicious complaints while also requiring proof of sexual harassment. This mechanism not only promotes a high level of PoSH awareness but also prevents the misuse of the law. Please note that not being able to prove a complaint does not make it a false complaint.

10. Right to Appeal Against ICC’s Decision

Either the complainant or the respondent can submit an appeal against decisions made by the Internal Complaints Committee (ICC) to the appellate tribunal within 90 days. This additional safeguard helps enhance PoSH Act compliance by providing further protection mechanisms.

Implementing the PoSH Act not only ensures compliance but also fosters a safe and respectful workplace where diversity thrives and performance peaks. By providing clear procedures for handling complaints, the PoSH Act maintains confidentiality while ensuring prompt and fair resolutions for all involved parties. Organisations that take these steps create a workplace that goes beyond mere compliance, promoting a culture of safety and respect that benefits everyone.

Complykaro’s PoSH Training and Compliance Services can assist your organisation in creating a safer workplace and ensuring that it is prepared to handle sensitive situations. Our PoSH awareness training programs are designed to help your employees understand their responsibilities under the PoSH Act and to comply with all applicable regulations. Contact us today for expert guidance on creating a more secure and compliant work environment.