The Importance of an External Member Under the PoSH Act

Did you know that around 70% of workplace sexual harassment cases go unreported due to the fear of retaliation and biases? Under the PoSH Act, 2013, an impartial inquiry is necessary, and that is where an external member of the Internal Complaints Committee (ICC)/Internal Committee (IC) comes in. Internal dynamics can often influence proceedings, and an external member brings legal expertise, objectivity, and credibility to have independent oversight.

This blog post explores the critical role of an external member under the PoSH Act, leaning into the importance of their involvement in contributing to a compliant, equitable, and safe workplace environment, where employees feel empowered to report any concerns without fear of reprisal.

Section 4(2)(c)) of the PoSH Act mandates the appointment of one external member to the ICC/IC to ensure impartiality and neutrality when handling sexual harassment cases. This external member brings neutrality and expertise to the ICC/IC, ensuring that all sexual harassment cases are dealt with legally and fairly in a time-bound manner

Criteria for selecting an external member to ICC/IC:

• The member should be familiar with issues relating to sexual harassment irrespective of whether they are a lawyer / NGO Member or not.
• They should have no employment or financial ties with the business to avoid any conflicts of interest. 
• The member should remain neutral and unbiased to ensure fair proceedings without internal pressure or conflict of interest. 

By appointing a qualified PoSH external committee member, organisations ensure compliance with the PoSH Act and provide a safe work environment for employees.

1. Participation in Complaint Inquiries

The external member assists and leads the IC to redress all complaints received from the start till the end. They ensure processes are carried out according to the provisions of the PoSH Act. The objectivity of an external member is crucial to the ICC, as their impartial perspective can assist in navigating difficult cases where internal members may be affected by workplace relationships. They also assist in creating relevant questions upon examination of aggrieved women, respondents, and witnesses so that the inquiry is thorough and unbiased.

2. Ensuring Fairness and Neutrality

Another important role of the external member in ICC is to ensure that the integrity of the inquiry is maintained. The internal members may unintentionally favour certain parties due to workplace hierarchies or interpersonal relationships. The external members avoid this, ensuring that the testimonies and evidence are weighed without bias. They also guide the ICC/IC to maintain procedural fairness so that undue influence can not compromise the outcome. 

3. Legal and Procedural Guidance

Most organisations find it difficult to decipher the legal requirements of the PoSH Act, and hence, procedural failures occur. The external member helps the ICC understand:

• How to implement the law during inquiries.
• Complaint filing timelines, inquiry conduct, and report filing.
• Document protocols for legal defensibility.
• Participate in preparing the ICC annual report.

Their knowledge reduces the risk of non-compliance and safeguards the organisation against legal liabilities.

4. Report Review and Final Recommendations

Before closing any case, the external member carefully examines the inquiry report. They check whether all the evidence has been considered, the law has been followed and suggested measures align with legal provisions. The independent endorsement of the final report guarantees the integrity of the process and helps to identify and rectify errors that could lead to legal disputes or unfair outcomes.

1. Enhancing Committee Credibility

Having a neutral external member enhances employees’ confidence in the complaint procedure. Employees are more confident about reporting sexual harassment if they feel that inquiries would be fair, particularly when senior personnel are involved. This results in greater reporting rates and sooner intervention in possible sexual harassment scenarios. 

A recent study emphasised that although more sexual harassment cases are being reported by Indian companies, there are still concerns about inadequate awareness and compliance with the PoSH Act, as a small number of companies account for the majority of reported cases.

2. Expertise in Handling Sensitive Cases

An external member’s experience ensures that the cases are handled with sensitivity, confidentiality, and professionalism in a time-bound manner ensuring compliance with the PoSH Act. Being well-versed with the redressal and inquiry process as per the PoSH Act, they assist the internal members in carrying out efficient inquiries, analysing evidence, and ensuring a fair approach to both parties.

3. Maintaining Objectivity

One of the most important roles of an external member of PoSH is to provide an impartial perspective. An organisation’s internal biases or power dynamics can impact decision-making, but an external member prevents this by maintaining neutrality. Their objective view ensures that complaints are evaluated on merit and undue influence is avoided, strengthening the trust in the PoSH Act compliance process.

4. Legal Compliance Assurance

The PoSH Act compliance checklist mandates the inclusion of an external member to ensure due process in adherence to PoSH guidelines. Their presence ensures that all inquiries are conducted according to due process, meet legal requirements, and avoid risks of procedural failures. This ensures organisations remain compliant with the workplace sexual harassment law in India, preventing fines and reputational loss.

D] How Organisations Can Select the Right External Member

Organisations need to carefully evaluate potential external members based on experience in dealing with cases of workplace sexual harassment and familiarity with the PoSH Act. The employer must conduct a thorough background check on potential external members to ensure that they have no conflicts of interest or previous ties with the organisation. Regular orientation and PoSH training for employees and committee members, including external members, is necessary to keep them updated on the changing legal requirements and best practices. 

Conclusion

An external member of an Internal Complaints Committee (ICC)/ Internal Committee (IC) plays a pivotal role in assuring fairness, transparency, and legal compliance in handling inquiries of workplace sexual harassment. With an unbiased view, legal acumen, and guidance on the procedures, they gain employee trust and ensure organisations comply with PoSH Act requirements. The appointment of a capable external member serves the legal obligation and enhances the organisation’s approach to maintaining a secure and respectful workplace.

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