Understanding the PoSH Complaint Process in Workplaces

Creating a safe working environment starts with building trust within the systems meant to protect employees. The PoSH redressal mechanism is designed to provide a structured process for women to report and resolve complaints of sexual harassment at the workplace. However, for this mechanism to serve its purpose, everyone must understand how it works. From complaint recognition to final employer action, each step of the PoSH complaint process is regulated by timelines and confidentiality rules. 

In this article, we will present a detailed and transparent insight into how the procedure works and why it is important to maintain a respectful work environment.

Sexual harassment in the workplace is a concern across industries. It imposes a range of costs that impact individuals, including the aggrieved woman, the respondent, that is the person against whom the complaint has been filed, and other employees and the company at large. The PoSH Act was enforced in 2013 with the objective of creating a safe workplace for women and protecting their dignity. The law has detailed provisions with regard to the PoSH redressal mechanism and mandates that every organisation having 10 or more employees should create an Internal Complaints Committee (ICC or IC), which will inquire into the complaints of sexual harassment at the workplace. The PoSH Act also has defined criteria to become an ICC/IC member, their term and grounds for removal, etc. 

Further details about how training can help ICC members, can be found here.

Once the complaint of sexual harassment is filed, a systematic and law-guided process is initiated. Below is how the PoSH complaint process operates:

1. Acknowledgement of Complaint

The Internal Complaints Committee (ICC/IC) will formally acknowledge the complaint once they receive it, in writing to assure the complainant that the same is being inquired as per the PoSH Act. This complaint could have been filed either by the complainant or by someone on her behalf in exceptional circumstances. In case the complaint lacks adequate information, ICC may request clarification or further information to get sufficient context to proceed.

The complaint has to be filed within 3 months from the date of the incident or 3 months from the date of the last incident in case of a series of incidents. In case the complaint cannot be filed within the aforesaid 3 months, the same can be filed within a further period of 3 months for which the complainant would have to justify sufficient cause and the ICC/IC would have to record its satisfaction in writing regarding the same.

Nonetheless, new proposed amendments yet to be effective, may alter the aforesaid PoSH complaint-making timelines and also provide IC the freedom of extending the timeline further for justifiable reasons

2. Initial Screening by Internal Complaints Committee (ICC/IC)

Once the ICC receives the complaint, it conducts a preliminary screening to determine whether the incident qualifies as workplace sexual harassment. If the Committee determines the complaint does not fall under the PoSH Act, say it’s a non-workplace complaint or not sexual harassment, the Committee will close the complaint. However, the ICC/IC must provide the reasons in writing. An alternative redressal forum may be advised in such a case.

3. Option for Conciliation

According to Section 10 of the PoSH Act, the complainant may choose to go for conciliation prior to a formal PoSH inquiry. This is a voluntary step and not obligatory, and cannot be undertaken by the ICC/IC suo moto or at the request of the respondent.

Monetary resolutions are not permitted in the process of conciliation. If the two sides come to an agreement and resolve the matter amicably, the ICC/IC documents the settlement and disposes off the complaint. But this section has been criticised at times, as complainant being coerced into conciliation cannot be ruled out. An amendment has been proposed by the Central Government to remove the conciliation process so that there are more effective, transparent redressals through a formal process.

If conciliation is not successful, the ICC/IC proceeds to hold a formal inquiry.

4. Formal Inquiry Initiated

A formal PoSH inquiry is held if conciliation is not requested by the complainant or fails. The ICC/IC initiates a structured and equitable process for the complainant as well as the respondent.

• Individual hearings are held where the two parties are heard independently and preferably not in the presence of the other party.
• Witnesses may be called by either party.
• All evidence i.e. statements, documents, emails, chat sessions, or CCTV footage etc are shared with both parties with option to cross examine the witness via questionnaire.
• Evidence is carefully analysed, i.e., statements, documents, emails, chat sessions, or CCTV footage as per submission.

The complainant also has the option to request interim relief during the pendency of the inquiry. Based on such a request, the ICC/IC is empowered to recommend to the employer to transfer either party to another location, change the reporting structure, or give paid leave to the aggrieved woman.

This is to guarantee that the Committee makes a decision based on facts and not assumptions or prejudice. Both parties are accorded an equal chance to make their case and respond to allegations.

5. Inquiry Timelines and Confidentiality

Following the PoSH complaint timelines, the ICC/IC would have to complete the whole inquiry procedure within 90 days from when they received the complaint.

Confidentiality is also a requirement in law under the PoSH Act. Everything, including witness, respondent, and complainant identities, must be kept strictly confidential to maintain the privacy and dignity of all concerned parties.

Adherence to the principles of the PoSH Act and respect and impartiality of both parties must be ensured during the redressal process.

6. Inquiry Report Submission

Upon the completion of the inquiry, the ICC/IC must create a detailed inquiry report within 10 days. The report comprises:

• The findings are based on facts and testimonies.
• The rationale of the findings.
• Suggestions for disciplinary or corrective measures.

The report must be shared with both the parties as well as the employer or the responsible authority of the organisation for implementation.

7. Employer’s Action

Upon receipt of the inquiry report, the employer is statutorily obliged to act within 60 days as recommended by the ICC/IC. In case the complaint is held to be true, the Act has spelt out specific repercussions to be recommended by ICC/IC which can entail salary deductions to compensate the complainant as well as any disciplinary action including the following:

• Issuance of a written warning or apology or reprimand or censure.
• Realignment of lines of reporting or transfer of the respondent.
• Withholding of promotion, pay rise, or increments.
• Termination of employment in serious cases.
• Mandatory counselling or sensitisation workshops.
• Carrying out community service.

In case of a false complaint by the complainant, the ICC/IC can also recommend similar disciplinary action. However, not being able to prove a complaint does not make it a false complaint.

It is important to note that the above disciplinary actions are not exhaustive. The IC is at liberty to recommend a solution based on gravity and based on the given evidence.

Companies also stand to gain from implementing external PoSH compliance solutions, ensuring that their internal processes follow the law and are efficient.

Even though the PoSH complaint process is intended to be comprehensive, fair, and time-bound, in some cases, one or both parties are likely to not be satisfied with the result. For such circumstances, the law ensures a very clear path for escalation.

If the respondent or complainant feels that the PoSH inquiry was flawed, either with regard to findings, fairness, or procedure, they are entitled to appeal the ruling before the concerned appellate forum. This appeal has to be lodged within 90 days from the date the Internal Committee (IC) announces its recommendations.

Reasons for appeal can be:

• Perceived bias during the entire process.
• Insufficient compliance with the PoSH redressal process.
• Non application of mind to the evidence produced before the ICC or ICC’s finding based on no evidence.
• Disagreement with the recommended course of action.

Employers also need to take appeals seriously and provide complete cooperation with appellate authorities. To avoid such scenarios and reinforce internal procedures; organisations can consider hiring professionals for regular compliance audits and PoSH training.

Conclusion

Resolution of sexual harassment complaints at the workplace with clarity, equity, and compassion is a must. PoSH compliance guarantees the timely resolution of complaints and the maintenance of the privacy of all concerned parties. But knowing the PoSH complaint process is half the battle, applying it effectively is what really matters.

To assist your organisation in fulfilling its responsibilities under the PoSH Act, Complykaro offers compliance solutions and expert-guided PoSH training and compliance in India. Whether you’re establishing a committee, addressing a complaint, or training your employees, we can assist you in building a safer, more compliant workplace. Contact us today!