Conducting POSH Investigations under the POSH Act and Rules
Salient practices, organizations must consider
(Veena Krishnan, Arjun Paleri and Jaya Ramachandran)
With the objective of creating safe spaces free of sexual harassment in the workplace, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Act") brought into force the requirement of having a constructive complaint redressal mechanism for women.
The objective of the Act is to prevent sexual harassment of women at workplaces. It is aimed to protect a 'complainant,' who has been the recipient of any act of sexual harassment in the workplace. This does not necessarily mean only women who are employees but any woman who has been sexually harassed at a particular workplace can have recourse under the Act. The only requirement to enforce applicability of the Act is that the sexual harassment should have occurred at the workplace. Also, owing to the current pandemic, most of the working population is working remotely, therefore organizations need to be mindful that even though the employees are working from home, they continue to electronically operate in a 'workplace' and therefore organisations have to continue ensuring a safe working environment so far as work related interactions are concerned.
The Act makes it is imperative for organisations with 10 or more employees to constitute an Internal Committee (“IC”) at all their workplaces. If there are less than 10 employees in an organisation and therefore there is no IC with whom a complainant can file a complaint, then a complaint can be filed with the Local Committee (“LC”), which is constituted by District Officers as a platform to conduct the POSH investigations.
Gender Sensitization Training Program
Before understanding how to go about the procedure once a complaint of sexual harassment is filed, it is important to understand tools which can help prevent an unsafe work environment in the first place.
Under the Act, employers are required to organise workshops and training programmes at regular intervals for sensitising the employees with regard to the provisions of the Act and to help maintain a safe workplace environment.
Apart from simply acquainting the staff with the law that is in place, it is advisable to conduct workshops which make the employees empathetic towards sexual harassment issues.
Activities like breaking the ice between the different gendered staff, non-discriminatory opportunities for every gender and providing a welcoming and supportive environment can help the organisations ensure a safe workplace.
Training programmes are also to be conducted for members of the IC to understand the nuances of the Act, compliances they need to maintain and the sensitivity they need to ensure during an inquiry in the event a complaint is registered.
Therefore, integrating respect towards all genders lies at the bedrock of these training programmes along with providing a comprehensive understanding of the Act and the organisation’s internal policy against harassment.
Gender Neutral POSH Policy
Notably, the Act, does not provide a redressal mechanism which can provide a platform for addressing and adjudging sexual harassment complaints of genders apart from women in the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("Rules”) provide that every organisation should draft an internal policy (“POSH Policy”) which prohibits sexual harassment at the workplace and which provides a direction for the implementation and achievement of zero tolerance against sexual harassment at the workplace, in order to coherently develop a gender sensitive safe space. However, in order to promote gender-neutral principles against sexual harassment in workplaces, organisations can draft a gender-neutral internal policy against sexual harassment.
It is advisable for organisations to draft a gender neutral POSH Policy to maintain a safe work environment for not only women, but those who identify with genders apart from female. This is especially relevant, with the increase in public sensitivity and recognition to non-binary understanding of genders. Limiting a POSH Policy only to women would prevent a redressal system which is accommodating to not only women but also men and members of the LGBTQIA+ community who don’t identify with either of the genders.
Therefore, while the legislation has provided a set of rules which is for the benefit of women, the need for developing a gender neutral POSH policy is growingly required.
Investigation Procedure for complaints made by men and third genders
The Act gives the IC powers enjoyed by a civil court under the Code of Civil Procedure, 1908 such as ensuring the attendance of the parties, submission of documents and other procedural requirements in a civil case. However, since this power is vested in the IC by virtue of the Act, procedural powers of the IC only pertain to complaints made by a complainant i.e., an 'aggrieved woman' as envisioned in the Act. Hence, the IC’s procedural powers under the Code of Civil Procedure, 1908 do not extend to complaints made by a gender apart from a woman.
A gender-neutral POSH Policy drafted by the organisation can provide for the IC to enquire into complaints from genders apart from women in a manner as prescribed in the policy itself. Hence, organisations drafting gender-neutral POSH Policies must be mindful of laying down this procedure in order to ensure a fair, just and consistent complaint redressal mechanism for men and members of the LGBTQIA+ in the workplace.
Any action taken by the IC in such matters would be considered as a part of the organisation’s disciplinary action against the respondent or the complainant as the case may be.
Stages of a POSH Investigation
One of the most important aspects covered in the Act, is the investigation procedure when a complaint is filed by a complainant and this section clarifies the stages of a POSH investigation.
Filing of a complaint:
How to file a complaint? The first stage involves the complainant filing a written complaint, with six copies of the same along with the supporting documents and the names and addresses of the witnesses to the IC or LC, as the case may be.
Is there a timeline within which a complaint has to be filed? The complaint should be submitted no later than 3 months from the date the sexual harassment took place. Exceptions in delay might be allowed where the IC or LC opine that there was sufficient reason for the same.
Who can file a complaint? Other than the complainant, the Act and Rules allows a legal heir, relative, co-worker, special educator or more persons to file the complaint on behalf of the aggrieved woman if she is unable to do so because of her physical or mental incapacity or death or otherwise.
The IC or the LC must provide the respondent with a copy of such complaint within seven days from receipt of the complaint.
On receiving the complaint, the respondent is mandated to file a reply along with the supporting documents and names and address of the witnesses to the Committee within ten days.
The complainant gets the choice to settle the matter.
If requested by the complainant, the IC should take steps to settle the matter between the complainant and the respondent by way of conciliation before commencing any inquiry proceeding.
However, the IC should not suggest a compromise between the complainant and the respondent.
Conciliation allowed should be without any monetary settlement.
Once the settlement is recorded and the copies of the same are provided to the parties, the IC does not have to proceed with the inquiry.
Where there is no settlement under Stage 3, the IC must proceed with the inquiry in accordance with the service rules that are applicable to the respondent.
In the absence of service rules, the IC should conduct the inquiry as per Section 11 of the Act.
For the purpose of conducting the inquiry, the IC has powers vested in it as those vested with a civil court under the Code of Civil Procedure, 1908. While the IC/LC may follow the procedure laid down in the Code of Civil Procedure, 1908, they may also employ procedure as may be necessary while ensuring the principles of natural justice are maintained.
The IC is also entitled to give an ex-parte decision, with a notice in writing 15 days in advance, where the complainant or the respondent fail to present their case/appear before the IC upon being summoned, without sufficient cause, for three consecutive hearings.
Such inquiry must be completed within 90 days.
Submission of IC Report
Post the completion of the inquiry, the IC will have to submit a report with its conclusions from the inquiry to the employer (and where a complaint was forwarded to the IC by the LC, also to the District Officer) within 10 days of completion.
The mere presentation of two possible narratives by the parties does not make it necessary for the IC to re-look into the evidence after the inquiry is completed.
If the IC concludes that sexual harassment has taken place, it should recommend to the employer to take necessary action against the respondent as per the service rules of the organisation and where such service rules do not exist, then in such manner as set out under Rule 9 of the Rules which includes a written apology, warning, withholding promotion or increments, termination, etc.
The IC can also recommend deducting from the respondent’s salary any amount as may be necessary to pay the complainant by way of compensation.
Such action by the employer must be taken within 60 days of the receipt of the recommendation.
Where the IC opines that the allegations made were false or malicious, it can recommend action against the complainant in accordance with the provisions of the service rules applicable to the complainant. Where the service rules are not applicable to the complainant action can be recommended in accordance with Rule 10 of the Rules..
Points to consider in a POSH Investigation
Full and Final Inquiry:
The investigation procedure and fact finding conducted by the IC is not a perfunctory or preliminary proceeding and any decision taken by the IC, is final. Hence, the parties, namely the complainant or the respondent do not have the discretion to alter the decision of the Committee unless they appeal against the same.
Action during Pendency:
The IC should take steps to ensure that the complainant and the respondent do not make contact to prevent any further harassment.
Potential harassment threats should be identified by the IC at the beginning itself to suggest preventive measures to the employer.
The IC on written request of the complainant can direct the organisation to restrain the respondent from reporting or reviewing the complainant’s performance or writing any confidential report pertaining to her.
The IC can also recommend the employer to transfer the complainant to another workplace, grant her leave up to three months or any other such relief as required.
The report of such action during the pendency of the inquiry must be sent to the IC.
Restriction on bringing Legal Practitioners during the POSH Investigation:
The Rules makes it clear that during the different stages of the POSH Investigation, none of the parties are allowed to bring any legal practitioner to represent them or be present during the hearings. While the IC has the powers to conduct the investigation like any other civil court with the procedures laid down in the Code of Civil Procedure, 1908, it may be difficult for individuals without a legal background to navigate through this process. Therefore, it is advisable for the parties (the complainant and the respondent) to approach a Legal Counsel who can guide them through each of the steps along with the necessary documents that are to be submitted for the investigation. The Act and the Rules do not prohibit the presence of a legal practitioner engaged by the IC in order for the IC to ensure that due process as stipulated under the Act and the Rules are adhered to.
Unconscious bias and conflict of interest:
An unconscious bias by the members of the IC can affect the outcome of an inquiry proceeding. Therefore, it is ethically imperative that any favour or discrimination towards or against any of the parties to the complaint is avoided.
The IC has to deal with a complaint only on its merits. As part of the training, IC members need to be adequately trained to spot any conflict of interest or bias.
Where there is a real likelihood of a conflict or bias, the IC should be reconstituted.
Unconscious bias includes discussion on morals, clothing, behaviour, etc.
By virtue of the delicate nature of sexual harassment cases, confidentiality is at the core of any POSH Investigation. The Act makes it clear that any information regarding the proceedings of the investigation, the identity of the parties involved, the details of the nature of sexual harassment committed by the respondent or information regarding conciliation will not be within the scope of the Right to Information Act, 2005 and must not be addressed to the press or media in any manner. The POSH Act limits the liberty to address the press only to information regarding the justice secured to any complainant without revealing her identity.