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Brief Compliance Guide On POSH Laws

Brief Compliance Guide On POSH Laws

CS Priyanka Chuphal | Updated: 21 March, 2022

In an attempt to enable a safe working environment for women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Rules (collectively known as POSH Laws) were enacted by the Parliament in the year 2013.


These laws are applicable upon every workplace, establishment, company, and organization, inclusive of MNCs, firms, shops, restaurants, etc.


Through this write-up, we will provide a brief insight into the provisions of the POSH Laws for your better understanding and compliance.

Brief introduction

After 16 years of Vishaka Judgement, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as “SHWWP (PPR) Act, 2013”) was introduced with the objective to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto.

The SHWWP (PPR) Act, 2013 defines sexual harassment as an unwelcome act or behavior (whether directly or by implication) namely, physical contact and advances, a demand or request for sexual favors, making sexually colored remarks, showing pornography, any other unwelcome physical, verbal, or non-verbal conduct of sexual nature. Any act of unwelcome and sexual nature shall be considered as sexual harassment.

Applicability:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is applicable to every workplace, establishment, company, or organization employing 10 or more persons (full time, part time, interns or consultants included) irrespective of gender mix. Thus, compliance is mandatory even if there is no female employee in the organization as the POSH Laws also safeguard the rights of a female visitor to the workplace.

POSH Laws compliance is required to be ensured for every office/branch of the organization, i.e. for multiple locations in the same or different cities, each having 10 or more employees irrespective of the nature of industry.

Compliance of POSH Law:

A. Committee: Each organization with 10 or more employees is required to form an Internal Committee (Earlier known as ‘Internal Complaints Committee’) headed by a “female presiding officer”.

B. Policy: Formulation of an Internal POSH Policy for the prevention and redressal of sexual harassment at workplaces.
C. Training Program: Orientation and training programs are also required to be carried out by the organization.
D. Annual Report: The organizations are also required to file an annual report with the information of the number of sexual harassment complaints received in a year, the number of complaints disposed of in a year, cases pending for more than 90 days, etc.

A. Internal Committee:

S. No.

Member

Eligibility

1.

Presiding Officer

Women working at senior level as employee; if not available then nominated from other office/units/ department/ workplace of the same employer

2.

2 Members (minimum)

From amongst employees committed to the cause of women/ having legal knowledge/experience in social work

3.

External Member

From amongst NGO/associations committed to the cause of women having an experience of at least 5 years towards women welfare or such cause or a person familiar with the issue of Sexual Harassment

B. Preventive Policy on Sexual Harassment at Workplace

Employers/District Officers are responsible for complying with prohibition, prevention, and redressal of workplace sexual harassment. In practice, this means having a policy that:

  1. Prohibits unwelcome behaviour that constitutes workplace sexual harassment;
  2. Champions prevention of workplace sexual harassment through orientation, awareness and sensitization sessions; and
  3. Provides a detailed framework for redressal.

C. Dissemination of Information and Awareness Generation

Employer shall ensure the following in terms of Section 19 of SHWWP (PPR) Act, 2013:
  1. Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment, and provides a detailed framework for prevention, and redress processes.
  2. Carry out awareness and orientation for all employees.
  3. Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban Local Bodies or like bodies, as appropriate.
  4. Ensure capacity and skill building of Complaints Committees.
  5. Widely publicize names and contact details of Complaints Committee members.

Further, he shall discharge his other duties stipulated under section 19 of SHWWP (PPR) Act, 2013.

D. Annual Report:

The Internal Complaint Committee shall prepare an Annual Report, in such form as may be prescribed, with the following details related to a calendar year and the Committee shall submit this report with the Employer:

a) Number of complaints of sexual harassment received during the year;
b) Number of complaints disposed-off during the year;
c) Number of cases pending for more than 90 days;
d) Number of workshops or awareness program against sexual harassment carried out;
e) Nature of action taken by the employer.

The Employer will further submit this report to the District Officer in the month of January every year along with details related to cases, if any latest by January 31 in all states except otherwise prescribed, such as the due date for furnishing this report is 30th April for Gurugram District of Haryana.

Who is a District Officer (DO)?

State Governments will notify a District Magistrate/Additional District Magistrate/ Collector/ Deputy Collector as a District Officer at the local level (including every block, taluka, tehsil, ward, and municipality).

Miscellaneous Provisions

Inclusion of POSH compliance in Directors’ Report prepared under Companies Act, 2013:
The Board Report prepared and submitted under the Companies Act, 2013 shall include a section to capture the compliance to the SHWWP (PPR) Act, 2013 and is required to be filed along with Form AOC-4 to the Registrar of Companies.

Penal Provisions:

An employer shall be subjected to a penalty of up to Rs. 50,000 (Rupees fifty thousand) for:

  • Failure to constitute Internal Complaints Committee
  • Failure to act upon recommendations of the Complaints Committee; or
  • Failure to file an annual report to the District Officer where required; or
  • Contravening or attempting to contravene or abetting contravention of the Act or Rules.

Where an employer repeats a breach under the Act, he shall be subject to:

  • Twice the punishment or higher punishment if prescribed under any other law for the same offence.
  • Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.

Opinion

In the past two years, Ministry of Woman and Child Development has become active and is moving swiftly to ensure compliance by the organizations with the POSH Laws. In this direction, ‘SheBox’ (http://www.shebox.nic.in/), an online platform, has also recently been launched by the concerned Ministry to enable filing of direct complaint by the victims against the instances of sexual harassment at workplace and to provide better redressal mechanism to them.

Thus, in view of the fast changing dynamics of the businesses and laws, the businesses should ensure compliance with the POSH Laws to get immunity from the penal provisions. The compliance is briefed hereunder:

Initial Stage Compliance Activity
Compliance with POSH Laws as necessary at preliminary stage:
  1. Checking applicability of POSH Laws and advising roadmap;
  2. Drafting of Policy on Prevention of Sexual Harassment at Workplace;
  3. Constitution of Internal Committee (re-constituted after expiration of every 3 years); and
  4. Implementation of Policy at initial stage including providing handbook and basic educational material.

Annual Compliance Activity

Preparation and Filing of Annual Reports to the District Officer on behalf of the Employer is required to be done annually.

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