Key Provisions of the POSH Act and How to Comply

Table of Contents

Introduction

Sexual harassment in the workplace is a serious issue that impacts a large number of employees across various industries. In response to this, India enacted the Prevention of Sexual Harassment at Workplace (POSH) Act, 2013 to set up a strong framework for curbing and addressing cases of sexual harassment in the workplace.

Compliance with the POSH Act is a legal responsibility of every employer in India. . Organizations should be aware of the key provisions of the POSH Act, design policies and establish Internal Complaints Committee (ICC) to handle complaints and ensure clear communication of workplace policies to all employees in the company. Noncompliance with the POSH Act provisions can attract legal penalties, financial fines as well as reputational damage.

The Act applies to all workplaces including government and private entities, educational institutions and schools, hospitals, and even remote work environments. It safeguards employees, interns, freelancers , and contractual workers from sexual harassment. These steps include formulating an ICC, conducting regular POSH training sessions, displaying the POSH policy, ensuring grievance redressal mechanisms, etc.

This article explores key provisions of the POSH Act provisions and how organizations can ensure POSH compliance to establish a safe and harassment-free workplace.

Insights into POSH Act, 2013

Under the POSH Act, 2013, the law provides for the prevention and prohibition of sexual harassment in the workplace. It is based on the Vishaka Guidelines issued by the Supreme Court of India in 1997, highlighting the need for legal protection against workplace harassment.

Key Features of the POSH Act:

Scope: The Act is applicable to various workplaces, including corporates, startups, NGOs, schools, colleges and remote work environment.
Protection: It safeguards full-time and part-time employees, interns, contractual workers, and third-party vendors from sexual harassment.
Definition of Sexual Harassment: The Act covers physical, verbal, and non-verbal forms of harassment, including unwelcome advances, sexually colored remarks, and online harassment.
Responsibility of Employers: Individuals other than employers, including supervisors and colleagues, also have a role in preventing harassment in the workplace.

The provisions of the POSH Act makes it mandatory for organizations to implement stringent anti-harassment measures while also providing a structured channel through which employees can report grievances.

Why is the POSH Act Important for Employers and Employees?

The Impact of Workplace Sexual Harassment

Sexual Harassment in the Workplace is not just an HR Problem, it has far-reaching consequences that affect both employees and employers. It leads to emotional distress, decreased productivity, and job dissatisfaction among employees. Fear and anxiety in the workplace can result in lower morale.

This article presents the legal risks employers face if they fail to take appropriate compliance measures, including potential reputational damage to organizations that do not properly handle harassment complaints.

Read our article: POSH Policy Guide: Drafting, Compliance & Workplace Safety

Law on Prevention of sexual harassment (POSH)

The POSH Act, 2013 was enacted to ensure the safety and respect of women in the workplace. The Act:

Applies to all employees — full-time, part-time, interns, and contractual workers.
Establishes a legal system to report and resolve complaints.
Guarantees strict punishments for sexual misconduct.
Encourages workplaces to introduce gender-sensitive policies.

Before the POSH Act: A Case Study on workplace harassment

Before the POSH Act, many instances of workplace harassment went unreported, particularly when committed by those in positions of power. This was due to the lack of a formal redressal mechanism.

The Vishaka v. State of Rajasthan (1997) case brought this issue to the forefront, with the Supreme Court recognizing the urgent need for a structured legal framework to address workplace harassment. This led to the formulation of the Vishaka Guidelines, which ultimately became the foundation for the POSH Act, 2013.

Important Provisions of the POSH Act

Recognizing the need for a safer workplace, the POSH Act, 2013 was passed, which recognized, defined, and address measures to prevent sexual harassment at the workplace.

What is Sexual Harassment?

As per the Act, the below-mentioned acts fall under the category of sexual harassment at the workplace:

Unwelcome physical contact or advances. Demand or request for sexual favors.
Sexually colored comments or jokes.
Displaying pornography or sexually explicit content
Any discomforting physical, verbal, and non-verbal behaviors of sexual kind

Coverage of the POSH Act

This applies to all individuals – including permanent employees, interns, consultants, and contractual workers.
Identifies virtual workplace harassment (e.g. inappropriate emails, messages, or video calls).

Responsibility of Employers per POSH

Employers need to take affirmative action to combat harassment in the workplace. These include:

Establishment of an Internal Complaints Committee (ICC) in all organizations employing more than 10 employees.
Conducting periodic POSH training for workers and managers.
Displaying the POSH policy at a prominent place in the workplace.
Maintaining confidentiality about all harassment complaints and investigations.
Filing annual compliance report to the District Officer.

Internal Complaints Committee (ICC): Composition & Role

Composition of the ICC

According to the POSH Act, every organization with more than 10 employees has to set up an Internal Complaints Committee (ICC). The ICC should consist of:

Presiding Officer – A female senior employee in the organization.
Two or more employees – Knowledgeable about gender sensitivity.
External Member – A person with experience in women’s rights or law.

Duties of the ICC

The ICC is responsible for:

Receiving and investigating complaints of workplace harassment.
Maintaining confidentiality of all complaints and proceedings.
Completing investigations within 90 days and recommending the appropriate action.
Submitting annual report to the employer and the District Officer.

The ICC has the power to call witnesses, gather evidence, and make disciplinary recommendations.

How to File a Sexual Harassment Complaint

Steps to File a Complaint

The ICC must be notified of the complaint in writing within three months of the occurrence of the incident.
The ICC must assist if the complainant is unable to file a written complaint.
Before the ICC proceeds with a formal investigation, it may seek conciliation to resolve the matter, provided the complainant agrees.

For the inquiry and resolution process

The ICC must complete its investigation within 90 days.
It allows the accused an opportunity to respond to the complaint.
Based on the findings, the ICC may recommend actions such as suspension, dismissal, or monetary fines.
If the employer does not implement the ICC’s recommendations, additional legal action may occur.

Non-Compliance with POSH Act: The Penalties

Non-compliance with POSH Act provisions by employers may result in:

A ₹50,000 fine, if an ICC has not been established.
Stricter penalties for repeat offenders.
Cancellation of business licenses for continued non-compliance.

Steps to Ensure POSH Compliance: Implementing a Robust POSH Policy

Defines sexual harassment in clear terms.
Additionally,, structured complaints and redressal mechanisms.
Implement a zero-tolerance policy against workplace harassment.

Implementing Training and Awareness Programs

Arrange for POSH training for their employees and managers.
Organise gender sensitization workshops.
Invest in the specialised training of the ICC members to deal with complaints effectively.

Strengthening Reporting Mechanisms

Use multiple reporting channels (consider allowing anonymous complaints).
Ensure a safe and retaliation-free environment, encouraging employees to report harassment without fear. Maintain strict confidentiality in handling all complaints and investigations.

Who is Responsible for POSH Compliance?

POSH compliance in an organization is generally the task of the HR team and the employers. Their responsibilities include:

Setting up a grievance redressal system.
Drafting POSH Policy & Code of Conduct.
Periodic POSH training for employees.

Internal Complaints Committee (ICC)

In the case of organizations with not less than 10 employees, the Internal Complaints Committee (ICC) deals with sexual harassment complaints. The ICC must:

Investigate complaints within 90 days.
Maintain confidentiality of proceedings.
Recommend disciplinary actions against offenders.

Failure to comply with the POSH will have legal consequences

Penalties for Employers

Non-compliance with the POSH Act can lead to:

A fine of up to ₹50,000.
License suspension due to the repeated violation
Employers’ liability for instances of workplace harassment.

Checklist of Employer Compliance Under POSH Act

To ensure full compliance with the POSH Act, 2013, employers must: Have a POSH policy in place stating — 1] What is considered workplace harassment, and 2] How to report it.
Establishment of an Internal Complaints Committee (ICC) comprising a Presiding officer from an internal member and an external member.
Organize POSH training workshops to familiarize employees and managers with their rights and responsibilities.
Submit annual POSH compliance reports to the respective government authority.

POSH Act Compliance for Small Businesses

POSH compliance applies even to small business entities. The steps include:

Local Complaints Committee (LCC): If the organization has less than 10 employees, then complaints would be handled by a Local Complaints Committee (LCC) constituted by the district officer.
POSH Training- Small enterprises are still required to conduct training sessions on POSH awareness to ensure harassment-free workplace.
Awareness: While formal ICCs may not always be necessary, small enterprises should have clear guidelines and encourage employees to report harassment incidents.

POSH Training Program for Organizations

Such training sessions keep employees informed about their rights and duties under the POSH Act. Best practices include:

Every employee receives annual training.
New joiners must go through mandatory POSH orientation.
Specialized training of ICC members regarding handling of complaints.
Host online and offline workshops to update employees.

The Rights of the Complainant and the Accused Under POSH

Under the POSH Act, both the complainant and the accused have specific rights.

Right to Confidentiality: The identity of both the parties should be confidential throughout the investigation and even after its completion.
Right to a Fair Inquiry: The accused has the right to defend him/herself and the responsibility is on the ICC to have a fair investigation.
Non-Retaliation: The complainant must not be subject to victimization by making a complaint.

Key Supreme Court Cases on Workplace Harassment

Landmark court cases that have shaped the interpretation and implementation of POSH Act & workplace harassment laws in India:

Vishakha vs. State of Rajasthan (1997): Resulted in the establishment of the Vishakha Guidelines which served as a framework for the POSH Act, 2013.
Farooqui Case (2017): Raised awareness of workplace harassment and consent-related conflicts in professional settings.

How Companies Can Create a Gender-Inclusive POSH Policy

Organizations must broaden their POSH policies to include:

Use gender-neutral language to protect LGBTQ+ employees.
Ensure protection against workplace discrimination based on sexual orientation and gender identity.
Implement harassment policies that apply to all employees, regardless of gender.

Can Employees Be Terminated for Sexual Harassment?

Yes, as per the POSH Act, an employer has the right to take strict action against an offender and may:

Subject to a formal ICC investigation and a finding of guilt, termination.
Take action in cases of severe offense such as termination or demotion.
Pursue legal action in line with the company norms and provisions of Indian Penal Code (IPC).

H2: Frequently Asked Questions (FAQs) on the POSH Act

1. How many men have filed sexual harassment complaints?

Although the POSH Act specifically addresses harassment of women, companies can implement gender-neutral policies.

2. Does POSH apply to remote work?

Yes, email, video call, or chat message harassment is included under the Act.

3. What happens if a company does not set up an ICC?

Employers can be fined a maximum of ₹50,000, and in case of repeated violations may lead to greater penalties.

Conclusion

POSH compliance is essential for legal protection, workplace environment safety, and upholding employee faith. It is up to employers to act and enforce a strict workplace harassment policy, as well as properly educating their employees.

Adhering to the POSH Act, of 2013, organizations can build a safer, inclusive workplace that is legally in compliance with the provisions of law for all members.

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