The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted with the objective of making workplaces secure and free of any form of sexual harassment. The legislation requires companies to take cognizance of the Act and lay down guidelines to identify instances of sexual harassment in their respective workplaces. They also need to establish strict mechanisms and processes to deal with instances of identified harassment. In compliance with this requirement, the company needs to draft a POSH policy. In this article, we discuss some of the main components of a company’s POSH policy.

What should be the main components of a company’s POSH policy?

• Definition of the term ‘Sexual Harassment’
  
  The very first step, of course, is to define what constitutes sexual harassment under the ambit of the company’s jurisdiction.
  
  As indicated by the provisions of the Act itself, along with definitions cited commonly by Indian companies, the following can be considered to fall under sexual harassment: Solicitation of favour in exchange of work related benefits or perks - for instance, this could include a request or a demand for sexual favour in exchange for a promotion or other incentives; Involving the use of pornographic material in one’s interactions with a woman; When the person’s behaviour creates an environment at the workplace that directly causes a person of the opposite sex to feel uncomfortable. Harassment can also be said to have taken place when there is inappropriate touching or brushing of body parts, staring or leering at the place, or unwelcome sexual gestures made by one employee to another.
• Gender Neutrality
  
  The assumption that only a female can be the victim of sexual harassment is, of course, inadequate in its nature. Transgenders, as well as males, can be the victims of sexual provocation.

Hence, it makes sense for a company to formulate a policy, which keeps the other genders protected against sexual harassment as well. The POSH Act, by itself, has been designed to take in to consideration only complaints by aggrieved women. One way of handling this issue would be for a company to declare its intent to implement a POSH policy that is applicable to the other genders as well. This would derive its legitimacy not only from the POSH Act itself, but also from the principles of the Articles 14, 15 and 21 of the Constitution.

• Stakeholders of the Policy
  
  The company’s POSH policy should define who is covered under its provisions. The employers, management, workers, and staff should be notified through regular notices that the company is a strict adherent to POSH. It should be clarified that the policy is also applicable to contract workers, as well as personnel who are not full-time employees of the company. As far as the campus or the workplace is concerned, the policy should also be applicable to occasional visitors such as interns, guests, investors and so on.
  
  There should be training sessions and seminars where women as well as other employees are sensitised to the provisions of the Company policy. Often, a lot of cases go unreported because employees are not aware that they are within full right to avail of the policy. The Company should also categorically state in its policy that it applies for senior personnel including upper management as well.
  
  
• Definition of the term ‘Workplace’
  
  There seems to have been some debate on the concept of what constitutes a ‘workplace’ with regard to a company’s POSH policy. Is it suitable to keep only the campus of the company as a legitimate ground upon which harassment can be reported to have occurred? What if harassment occurs in metros, or on the way to or from work, between two employees of the same company. The Company should make the effort to state clearly in its POSH policy as to what it considers to be the workplace. This is especially important with the occurrence of the pandemic, and the imposition of new working norms due to the situation. Consequently, companies should endeavour to provide an inclusive definition of the term workplace.
  
  As per recent revisions, the concept of extended workplace has gained much currency. The question is indeed relevant. What constitutes a workplace in the time and era of ‘work from home’? Can harassment also occur through online chat groups, through which important communications regarding teams as well as company notifications are circulated. This demonstrates the requirement of a clear definition of the term ‘workplace’.

• Statement of the time framework of a Complaint procedure
  
  The POSH Act states that the complaint of the aggrieved woman should be made within a period of 3 months of the last occurrence of harassment. As part of its POSH policy, the company should state the appropriate timeline within which all such complaints may be entertained. A notice should also be issued regarding the time within which the accused would need to respond to the notice.
  
  Of course, the Internal Complaints Committee is empowered to make changes in the timeline framework as per the unique circumstances of the Company or as it sees fit.
  
  
• Details about the Internal Complaints Committee
  
  The constitution of the Internal Complaints Committee is one of the most important components of the POSH Act. The Company should notify in a publicly visible bulletin, the names of the members of the Complaints Committee. This is in order to ensure that the aggrieved are aware about who to approach in case the situation so arises.

There are also some formal requirements as stipulated by the Act that need to be complied with. The Presiding Officer of the Committee needs to be a senior-level female executive. At least half of the appointed members of the Committee should be women. There should be an external member whose main purpose should be to act as an independent arbitrator within the committee. Also, although it is not compulsory, the company should make an effort to ensure that different regions are also represented in the Committee. This is to ensure that the aggrieved have different options in case they wish to approach a specific person in case of harassment.

• Disciplinary Measures
  
  The Committee may attempt for a formal conciliation between the two parties. However, financial compensation should not be the basis for the settlement. The Committee may attempt, in consultation with the aggrieved woman, to take corrective action as a means of resolving the offence.
  
  Some of the means of corrective action which can be taken include formal apology, transfer of the guilty person to another department. The person may also be disciplined in more emphatic fashion by terminating their services. Apart from this, the company may choose to offer counselling services to either of the two parties.
  
  
• Penal Consequences
  
  The Company may recognize, as per provision, of the POSH Act, the consequence of the company not complying with the law on one or repeated occasions. For a single non compliance, a fine of up to Rs. 50,000 may be imposed. For multiple non compliances, double the amount of the fine may be levied. It may also lead to disqualification of the company, or non renewal of trading license by the Government.
  
  
• Protection and Confidentiality
  
  The company should state that the respondent will be ensured confidentiality throughout the inquiry process. This is in order to allow respondents to feel more confident in approaching the competent authorities in order to report cases of sexual harassment. It is frequently seen that the victim of sexual abuse often becomes the subject of blame in Indian society. This is not a desirable state of affairs.

As per the provisions of the POSH Act, the details of the identity, name and address of either the aggrieved woman, or the respondent and witnesses should not be made known to the media or the public otherwise. Of course, there might be some issues as per the practical implications of providing confidentiality. In real life circumstances, the victim would have to approach officials, or HR managers and it would be practically difficult to ensure confidentiality. It is best that the company states in its policy framework that a strictly professional approach needs to be taken by the concerned authorities in such cases.

• Sanctions against False or frivolous Complaints
  
  The company should enact a strict policy against any false complaints of harassment that come across by its employees. The methodology of doing this would be to ensure that the inquiry proceedings are rigorous and exhaustive. There should be no room for error of judgement. False complaints can be seriously damaging to the reputation of a person, and it can also destroy their career prospects.
  
  In case it emerges that the complaint has been filed on false grounds, the Section 14 of the Act deals with malicious complaints. In such a scenario, the Internal Complaints Committee may recommend to the employer that strict action be taken as per the provisions of the Act. The Company should state at the outset in its POSH policy what the penalties for malicious complaints would be. The penalty should be strict enough to ensure that an ill-intentioned person may not consider abusing the provisions of the Act for their own personal agenda.

Conclusion

In this article, we have discussed some of the main features that a Company must incorporate in its POSH policy. These features will help the company become a safer, and more reliable work place, and put in place solid mechanisms for doing away with inappropriate behaviour or offences.