Corporate Compliance

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Consultation Per Hour
Total : 10000/- INR


Appointment of External Member and ICC Committee

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.

As per Section 4 of the Act, every company with 10 or more employees must constitute an Internal Committee (IC). This Committee must include:

  1. A Presiding Officer appointed from Senior Management (must be a woman)
  2. One external member from amongst non-governmental organizations or a lawyer
  3. At least two members representing the employees of the organization.

It is essential that at least one-half of the total members so nominated shall be women. All complaints shall be made to this body which must resolve every issue impartially.

Section 4(2)(c) of the POSH Act states that the external member should be

  1. A person from amongst non-governmental organizations or associations committed to the cause of women or
  2. A person familiar with the issues relating to sexual harassment.

The section does not specify any qualification or experience for external members, it mentions “familiar with issues relating to sexual harassment.”

This external member acts as an unbiased third party with a clean slate and no past affiliations with either party in a complaint. It is pertinent to understand that such an objective point of view is crucial in disposing of sensitive matters relating to sexual harassment where prejudice and political pressure may influence the fair proceedings of the Committee. If the constitution of the Committee is, thus, not in accordance with the Act, the inquiry done by them would be vitiated. The Courts have time and again reiterated that if the Internal Committee is formed in contrast to the provisions of Section 4 of the POSH Act, then the constitution of the committee itself would be illegal.

 

Selection of an external member 

It requires serious consideration before an outsider is engaged as an ICC member. In the first place, the involved institution must understand what to expect from the ICC's External Member. Among other credentials, it is essential to check their past legal record. Someone who has experience in dealing with questions of sexual harassment should be chosen. Try to ensure the member has the reputation of acting as neutral and unbiased. An external member on the ICC should have the following qualities to live up to these demands:

  • Knowledge, skills, and ability to address sexual harassment issues/complaints in the workplace 
  • Practice and a sound understanding of the legal aspects/implications.
  • Such expertise will enable ICC's smooth functioning in terms of equitable and informed handling of complaints, which would not only be sound and fair but should be perceived in the same way by all stakeholders concerned.

 

Ineligibility of External Member

A person cannot serve as an external member if he/she has been accused of an offense or awaiting any investigation or found guilty in disciplinary proceedings or is pending disciplinary action against him/her.

Gender specification for an external member

Any individual meeting the necessary qualifications may serve as an External Member. Nevertheless, most organizations, having a woman as an External Member, are confident. It is a misconception that the External Member must be a woman from an NGO. 

 

Consequences of not recruiting the correct external member

One of the principal issues analyzed by the Delhi High Court in Ruchika Singh Chhabra v. Air France India and Another (2018) was the eligibility criteria for an outside member of an ICC. The High Court noted that the purpose of the complaints committee procedure and its fundamental concept was to provide the complainant with an assurance of an investigation mechanism that is objective, neutral, and isolated from possible employer intrusions. It is thus crucial that the person named as the external member of an ICC fulfills the qualifications prescribed by the POSH Act satisfactorily. In the given factual context, the external member appointed by the employer on the ICC was neither a member of an NGO or association dedicated to women's rights nor was he able to establish his previous experience in dealing with sexual harassment cases. While it was asserted that the candidate was a lawyer with labor experience, the High Court held that such legal background would be sufficient to meet the criteria for appointing an external member of the Local Complaints Committee, but not an external member of an ICC.

 

The expected role of the external member

An entity will not meet the compliance provision under the 2013 POSH Act if it creates an ICC without an External Member on board the committee. An External Member advises the ICC on equitable, impartial, and objective inquiries.

Having an external member on board can be for operations that can involve them only for inquiries and meetings, or invite them (based on their level of expertise in this area) to advise the organization on establishing the compliance infrastructure. Most of the time the organization's internal members are not equipped with the industry practices and the overall aspect of adhering to the POSH Act, 2013, and it is advisable to seek an external member's expertise for the same.

The inclusion of an external member adds a degree of objectivity and external insight to the ICC's work and assures the plaintiff of an inquiry process that is objective, impartial, and not affected by the employer's potential pressures.

An external member could earn the employees ' trust and trust and should be accessed by the employees without hesitation. It is expected he will not hush the grievances and put them under the carpet.

 

How does White Code Legal help?

  • Helps to comply with POSH laws and compliances.
  • Helps in Formulation of Internal Complaint Committee.
  • Choosing Appropriate members and maintaining the quorum of the Committee.
  • Selecting an External Member who possesses appropriate knowledge, skills, and capacity in dealing with matters related to Sexual Harassment at the workplace.

 

Service Delivery Process followed by White Code Legal:

  1. The Client has to register themselves on our website.
  2. Once the Client is registered, we raise a Service Request.
  3. The Client receives a proforma invoice with an option to confirm and pay now or pay later.
  4. Once the Client confirms, our dedicated relationship manager liaisons with our experts, and clients share a list of client information required to deliver the service.
  5. Once we receive the information, we take the required steps to deliver the service and the service request is closed.

 

Service Inclusions

  • Professional Fees

 

Service Exclusions

  • GST, Government Fee, and other Additional Taxes

 

Why White Code Legal? 

At White Code Legal we prioritize and always strive to deliver excellence. Keeping a focus on maintaining affordable prices and delivering 100% client satisfaction we aim to make worth every penny our clients spend with us and build a lasting relationship with them.

 

 

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