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POSH Compliance and Advisory

 

Sexual Harassment violates the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and right to practice any profession, which includes a right to a safe environment free from Sexual Harassment. 

The prevention of sexual harassment act 2013 makes the harassment of women at the workplace a crime and the provisions under the Companies act make it compulsory for the organization to create and maintain a POSH committee i.e. the prevention of sexual harassment committee. 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the ‘POSH Act’ is an Indian law enacted with the objective of making workplaces safer for women by preventing, prohibiting, and redressing acts of sexual harassment against them in the workplace. The law was made effective in the whole of India on December 9, 2013, by the Ministry for Women and Child Development.

Legal provisions that have to be abided by;

  • Prevention of sexual harassment at workplace Act 2013. 
  • Companies Act 2013 

 

Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013, THE POSH ACT 2013 

Applicability

 This law is applicable to every industry, workplace, establishment, Company, organization, MNC, firm, shop, restaurants, etc.

  • Who is employing 10 or more employees (full time, part-time, interns, or consultants irrespective of its location or nature of industry)
  • The head of any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit of the Government or local authority.
  • The person responsible for the management, supervision, and control of any work that is not covered under the point above.
  • The person or household who employs a domestic worker in a house or any kind of domestic dwelling, regardless of activities performed by the domestic worker, the time period they are employed for, or whether they are working full-time or part-time.

 

Definition of Workplace

  • Any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled or funded by either the Government, a local authority (such as a Municipal Corporation), a Government Corporation, or a Government-run co-operative society.
  • Any private-sector organization, private venture, undertaking, enterprise, institution, establishment, society, trust, NGO, or a service provider, that carries out commercial, professional, vocational, educational, entertainment, industrial, financial or health-related activities.
  • Hospitals and nursing homes.
  • Sports institutes, stadiums, sports complexes, and competition venues may be used for training, sports, or any other related activities.
  • Any place visited by an employee arising out of during the course of their employment. This includes any transportation service provided by the employer for visiting any such place.
  • A house or any domestic dwelling.
  • Any enterprise commonly said to belong to the unorganized sector, which is owned by individuals or self-employed workers and engaged in the production or sale of goods or services.

 

What is ‘Sexual Harassment under the Act?

Section 2(n) of the Act defines sexual harassment to include the following unwelcome acts:

  1. Physical contact and sexual advances.
  2. A demand or request for sexual favors.
  3. Making sexually colored remarks.
  4. Showing pornography.
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

 These acts may be considered unwelcome if the woman expresses her discomfort upon the commission of these acts, or does not consent to them. Additionally, the following circumstances may amount to sexual harassment if they are connected with any of the acts or behavior mentioned above.

  1. Implied or explicit promise of preferential treatment in employment.
  2. The implied or explicit threat of detrimental treatment in employment.
  3. The implied or explicit threat about the present or future employment status.
  4. Interference with work or creating an intimidating or offensive or hostile work environment.
  5. Humiliating treatment is likely to affect health or safety.

 

Who are the beneficiaries?

The POSH Act protects women in the workplace from sexual harassment. All women employees regardless of whether:

  1. They are employed regularly, temporarily, ad hoc, or daily wage basis.
  2. They are employed directly or through an agent or a contractor.
  3. They are employed with or, without the knowledge of the principal employer.
  4. They are employed for remuneration or on a voluntary basis.
  5. The terms of employment are expressed or implied.

The above-mentioned are protected under the POSH Act. The POSH Act also applies to women contract workers, probationers, trainees, apprentices, and interns.

 

Mandates under POSH Act.

  • Provision of a safe working environment in the workplace: The POSH Act makes employers responsible for ensuring that the workplace is safe for its employees. In this regard, they must employ measures to ensure that their employees are safe from both employees and non-employees who might enter the workplace (delivery boys, for example). This mandate is not limited to the official workplace – it also includes any vehicles used by the company, and any third-party sites visited by the employees.
  • Constitution of an Internal Committee in every workplace with more than 10 employees: The Internal Committee (IC) is one of the two redressal bodies under the POSH Act. Any employer of a workplace with 10 or more employees is required to constitute an IC. The IC is responsible for hearing and redressing any complaints pertaining to sexual harassment in such a workplace.
  • Constitution of the Local Committee in every District: While only workplaces with 10 or more employees are required to constitute ICs, this does not mean women working at all other workplaces do not get protection under the POSH. The POSH Act also requires the constitution of a Local Committee (LC) in every District which is responsible for hearing and redressing complaints of sexual harassment from workplaces that may have fewer than 10 employees. The LC also redresses complaints in the case such a complaint is against the employer of a workplace themselves.
  • An in-depth inquiry into all complaints of sexual harassment: The IC/LC, as the case may be, is required to conduct an inquiry into every complaint of sexual harassment in accordance with the provisions of the service rules applicable to the respondent within ninety days (90 days) from the submission of the complaint. Upon the completion of an inquiry, the IC/LC is required to prepare a report of its findings. If the allegations of sexual harassment are proved, the IC/LC may recommend the employer or the District Officer to take action against the accused.
  • Organization of workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act:The POSH Act places a duty upon each employer to organize periodic sensitization workshops for all their employees so they are well versed with the provisions of the Act, the organization’s redressal procedures and the consequences of engaging in acts that constitute sexual harassment. Such workshops/training sessions must be organized by individuals who are experts or experienced in POSH sensitization.
  • 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.

 Punishment for false and malicious complaints and false evidence: The POSH Act takes into cognizance, false and malicious complaints and provides for strict action against them. If the IC/LC finds that an allegation of sexual harassment is false, it can recommend the employer or District Officer to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules applicable to them.

 

Repercussions of not complying with the POSH Act.

The POSH Act takes a firm stand against non-compliance with its provisions. If an employer fails to either constitute an Internal Committee or discharge any of the other duties placed upon them under the act, they shall be punished with a fine which may extend to fifty thousand rupees (Rs. 50,000).

In the event an employer contravenes the provisions of the POSH Act a second, they may be either fined twice the amount as the fine for the first contravention or face cancellation of their license, permit or registration for carrying on their business or activity.

 

How White code Legal help?

  • Formation of POSH committee 
  • Drafting Board Resolutions, ICC requirements Disclosure Undertakings
  • Formulation of Internal Complaint Committee (ICC), for handling and redressing complaints on sexual harassment.
  • Framing and adoption of POSH Policy clearly stating objectives, definitions, procedure, etc. 
  • Formation of POSH training to allow employees to differentiate between appropriate and inappropriate behavior and gestures.
  • Formation of POSH reversal mechanism.
  • Implementation of Sound grievance Redressal mechanism.
  • Helps in Drafting and Filing Annual Reports.
  • Advisory on questions relating to POSH Act or Harassment at the workplace.

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Service Inclusions

  • Professional Fees

 

Service Exclusions

  • GST, Government Fee, and other Additional Taxes

 

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