India’s POSH Act: What International Companies Need to Know

India’s Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act

What is the POSH Act?

The Indian legal landscape changed significantly in 2013, when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (commonly called POSH or The Act) became law.

POSH was India’s first piece of legislation that specifically dealt with workplace sexual harassment of women. Now, Indian employers are responsible for ensuring a safe working environment by preventing, prohibiting and redressing sexual harassment.

But, despite the Act’s numerous benefits, challenges around implementation were quickly apparent. Companies had to ask themselves, How can I remain POSH-compliant, particularly in regards to reporting?

I’ve consulted with a number of international companies with business dealings in India, and POSH law is a common point of discussion.

In today’s post, I’m going to summarize the Act, focusing on what companies need to know most. We’ll also dive into Convercent’s Hotline & Case Management, since these tools help employers maintain compliance.

The POSH Act: Scope & Applicability

The Act is unique in a number of ways. First, it recognizes that sexual harassment amounts to a fundamental violation of women’s rights, including their right to live with dignity in any profession, trade, or business.

Surprisingly, the law goes further than that — it’s enforceable everywhere in India, and it only protects women.

If a man is a victim of sexual harassment in the workplace, he isn’t protected by the provisions of the POSH Act. He must depend on company policies that prohibit harassment of any nature. Thankfully, these policies often exist, because many organizations have enacted gender neutral POSH policies.

Defining sexual harassment under POSH

The Act defines sexual harassment quite widely, and also includes ‘quid pro quo’ harassment, such as promises of advancement in return for sex.

Sexual harassment does not have to involve physical contact but could, for example, include sexual remarks, sexually explicit pictures or screensavers and inappropriate advances made directly or via social networking sites.

The ‘extended workplace’

The Act utilises the concept of the ‘extended workplace.’ In addition to the office of the employer or employee, any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment, will also constitute a workplace.

Further, social settings endorsed or financed by the employer are also considered a workplace under POSH law.

How POSH defines the aggrieved party

The Act does not require the woman to be an employee; a customer or a visitor who feels sexually harassed at any workplace can claim protection under POSH Law.

The definition of an ‘employee’ under the Act is also quite wide and covers:

  • Regular, temporary, and ad hoc employees.
  • Individuals engaged on a daily wage basis (either directly or through an agent)
  • Contract workers, probationers, trainees and apprentices.

To complicate matters, an employee under this definition could be working with or without the knowledge of the principal

employer, whether for remuneration or not. It also applies to workers who are utilised on a voluntary basis, and the terms of employment could be express or implied.

Duties of employers under POSH law

POSH law requires every employer to provide a safe working environment, including:

  • Displays of the penal consequences of workplace sexual harassment,
  • Publication of POSH-related policies,
  • Contact details for the Internal Committee, and;
  • Delivery of what is (potentially extensive) awareness training.

This range of requirements – amongst many other factors – have resulted in a relatively slow implementation of POSH within many organisations.

Establishing a mechanism to address POSH-related complaints

If a business wants to be POSH compliant, it must have a mechanism (or channel) for employers to address complaints relating to sexual harassment.

This channel is known as the Internal Complaints Committee (ICC) or Internal Committee (IC). If a workplace has fewer than 10 employees, the law requires the constitution of a Local Committee (LC).

Redressal of complaints & the IC

The Act requires that the IC include a senior level female employee as the chairperson or presiding officer, and a minimum of three other members who are all, potentially, required to conduct misconduct investigations in the event of a complaint.

Timeline for addressing POSH complaints

The Act has laid down the following specific timelines for complaints arising under the POSH Law:

  1. Filing of the complaint: The aggrieved woman must file the complaint with the IC, in writing, within 90 days of the date of the alleged incident of sexual harassment. If there has been a series of incidents, the complaint must be filed within 90 days from the date of the last alleged incident of sexual harassment. The IC has some discretion to extend this timescale. In some cases, including death or physical/mental incapacity, a third-party may file the report. While anonymous complaints are not given recognition under POSH law, many organisations nonetheless do allow filing of anonymous complaints.
  2. Completion of the inquiry: All complaints must be adjudicated and the recommendations finalised by the IC within 90 days of receiving the complaint.
  3. Submission of report: The IC must submit the report to the employer within 10 days of completion of the inquiry.
  4. Implementation of recommendations: The employer must implement the recommendations in the report prepared by the IC within 60 days of receipt.
  5. Appeals: All appeals under the Act must take place within 90 days of the recommendations being produced.

Reporting requirements under POSH Law

The IC must also prepare an annual report for submission to the employer and the local labour district office. This mandatory report must include:

  • Number of cases received and resolved
  • Number of cases pending for more than 90 days
  • Actions taken by the employer
  • Number of workshops or awareness programmes undertaken.

There is also an obligation under the Act for the employer to include this POSH law-related annual report in the company’s annual report.

Reporting developments: The ‘SHe-Box’

The ‘SHe-Box’, an online portal that directly forwards complaints to the IC of the employer or organisation, was launched by the Indian Ministry for Women in November 2017.

The portal also provides a forum outside the organisation for female employees to complain to.

If this forum didn’t exist, the woman would have to lodge a complaint with the police in the event of an unresponsive employer.

However, the SHe-Box portal only allows a victim to lodge a complaint. There is no whistleblower capability, which could be vital in a country where the stigma of identifying a perpetrator is significant.

Accommodating POSH Law requirements within Convercent Helpline & Case Manager

A recent Deloitte study identified the primary POSH Law reporting routes as:

  • Direct to member(s) of the Internal Committee (IC).
  • Direct to a senior female manager that the employee is comfortable with.
  • To the employee’s manager.
  • Via a whistleblowing mechanism (such as a nominated e-mail address).

Convercent’s Helpline & Case Manager supports all four routes, using proxy coupled with an appropriate process. Recipients are also required to log reports, in addition to reports made directly to the Convercent Helpline.

Moreover, given the tight timeline requirements under POSH law, Helpline & Case provides the necessary functionality to ensure that reports are managed to timely resolution whilst facilitating subsequent reporting. Additional benefits include full- and partial-anonymity.

On a wider note, there has been a recent statistically significant study which analysed the ‘gender punishment gap’ to see how male and female employees were comparatively treated for the same disciplinary offences.

The study revealed that female employees were treated significantly worse. To that effect, Case Manager and Insights clearly have significant potential benefit here, in an issue that is only recently being considered.

Ensuring your organization is POSH-compliant

Clearly, Helpline, Case, and Insights all have a role to play here, particularly in broader pattern analysis of sexual-type reports.

If your international organization has struggled to remain compliant with POSH law, consider scheduling a demonstration to learn more about Convercent’s easy-to-use, data-rich applications.