PoSH – as a series to cover comprehensive guidelines for the employers – focus on MSMEs
Posted On May 26, 2021
Introductory note by EFI
EFI, as a part of its Knowledge Exchange initiatives, for its Members and also its stakeholders at large, have published various articles from eminent persons from cross section of expertise. Diversity and inclusion are the buzz words and fast becoming an integral part of corporate governance. An essential aspect of this evolution has been the mandatory enforcement of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, shortly known as the PoSH Act. The PoSH Act is unique in its broad coverage which includes all working women from organised and unorganised sectors alike, regardless of hierarchy and its effective implementation has posed a challenge across the industries. Therefore, it is thought fit to bring out this article with comprehensive coverage of the law and a practical guide which I am sure, will serve a useful purpose for all sectors, particularly the unorganized and the MSME segments. This will be published as a series to ensure the flow of coverage from the essence of the law, key case laws and also the procedural aspects and FAQs.
The 1st series is being published and would appreciate all members to read, review and revert with any feedback/suggestions, addressed to (firstname.lastname@example.org), to facilitate coverage of the same in the subsequent series.
Understanding the PoSH Act and ensuring governance for various sectors –Series 1
(This article will have 4/5 series and this Series covers the foreground of the enactment of PoSH law and its highlights)
Written By: Vasudevan V General Counsel & ICC Member for Smollan-HUL JV, Certified Corporate Governance Professional & Member of Core Advocacy Committee – Retailers’ Association of India (RAI)
Diversity and inclusion are the buzz words and fast becoming an integral part of corporate governance. An essential aspect of this evolution has been the mandatory enforcement of the PoSH Act.
The Supreme Court, while voicing its serious concerns on the sexual harassment faced by working women, in the case of Vishaka & Ors. V. State of Rajasthan & Ors. [1997(7) SCC 323] reaffirmed that sexual harassment at workplace is a form of discrimination against women. While recognizing that sexual harassment violates the constitutional right to equality, the SC provided guidelines (known as VISHAKA Guidelines), to address this issue, pending enactment of suitable legislation. The VISHAKA Guidelines established that international standards/law could serve to expand the scope of India’s Constitutional guarantees and fill in the gaps wherever they exist. India’s innovative history in tackling workplace sexual harassment, beginning with the VISHAKA Guidelines and subsequent legislation has given critical visibility to the issue.
The PoSH Act.
As the PoSH Act is a comprehensive legislation to provide for safe, secure and enabling environment to every woman, irrespective of her age or employment status (other than domestic worker working at home), free from all forms of sexual harassment, has a wide application to all workplaces. This law mandates that the Workplaces must own their responsibility and ensure that women can work in safe and secure spaces. The key obligations imposed on the institutions are Prohibition, Prevention & Redressal.
While the PoSH Act extensively covers common connotations of what the legal definitions of an “aggrieved woman”, “employer”, “workplace” and “respondent” are, the definitions in the law are simpler than they turn out to be in actual situations. The purpose of this explainer is to examine how the PoSH act plays out in the industry in general and particular to diverse sectors, who employs a fair number of women in various roles each year.
Prevention of sexual harassment
(1) No woman shall be subjected to sexual harassment at any workplace. ________________________________________ (2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:— ________________________________________ (i) Implied or explicit promise of preferential treatment in her employment; or ________________________________________ (ii) Implied or explicit threat of detrimental treatment in her employment; or ________________________________________ (iii) Implied or explicit threat about her present or future employment status; or ________________________________________ (iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her; or ________________________________________ (v) Humiliating treatment likely to affect her health or safety.
Constitution of Internal Complaints Committee
Every employer of a workplace has to constitute a Committee known as the Internal Complaints Committee (ICC). If the Employer has multiple offices, administrative units or establishments, it shall constitute ICCs at such offices/administrative units. Employers/industry having less than 10 employees are classified as unorganized sector.
• Not less than 2 members from amongst employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge • 1 member from amongst NGO or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment
Provided that at least ½ of the total Members so nominated shall be women
Constitution of Local Complaints Committee
The PoSH Act also provides for constitution of a Local Committee at district level, by the appropriate Government, to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers, or if the complaint is against the employer himself.
Complaints – how to be made and the Redressal mechanism,
The manner of addressing a complaint and the Redressal mechanism, including an option for conciliation prior to initiation of inquiry into the complaint is dealt with in the PoSH Act. The Ministry of Women & Child Development (WCD) has a comprehensive mechanism for addressing the issues and have published a handbook of Guidelines for conducting inquiry under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Implementation at diverse industry, MSME and unorganized Sector-
While the Statement of Objects and Reasons for enacting the PoSH Act postulates that this legislation contains provisions to protect every woman from any act of sexual harassment, irrespective of whether such woman is employed or not, in practice it poses quite a challenge and riddle especially where the industry has a cob-web structure of workforce with complex contractual arrangements requiring deployment at workplaces, remotely connected with the employers’ establishment.
Many industries operates on a business model that combines different types of workers – some are regular employees, some temporary, some just free-pool, gig workers, or ad- hoc or daily wage workers. This varied workforce is also hired using a variety of mechanisms which include direct hiring, hiring through an agent/contractor, contract workers directly hired or engaged through the brand/third-party agencies, with whom a contractual relationship is established for “services” with the brand/agencies, but not particular personnel. The business model also then requires such a workforce, with varying contractual arrangements to be employed in a complex structure of workplaces some of which don’t quite meet the straightforward definition of a workplace.
However, the law applies to all establishments and all personnel irrespective of whose payroll such employees are and the contractor/principal employer. The law in fact mandates, inter alia, the responsibility to provide a safe working environment at the workplace, which shall include safety from the persons coming into contact at the workplace & .. provide assistance to the woman, if she so chooses to file complaint in relation to the offence under the Indian Penal Code, or any other law.
Therefore, it is imperative for any employer to have a robust system in place, to have a well- knit mechanism appropriate and prompt redressal.
Who should lead an Inquiry into Complaint?
The key question, which arises is whose PoSH Committee (i.e. whether the Employer of the aggrieved woman, or of the workplace where she was deployed at the time of complained harassment) is responsible, under law, to receive complaints, hold enquiries and to provide efficacious remedy to the aggrieved.
Section 11 of the PoSH Act, inter alia, provides that the Internal Committee or the Local Committee, as the case may be shall, where the respondent is an employee proceed to make inquiry into the complaint, in accordance with the provisions of the service rules applicable to the respondent (and where no such rules exist, in such manner as may be prescribed. The following illustration would guide the manner of inquiry into typical complaints:
1. By a woman employee of the workplace against another employee employed by the workplace 2. By a woman employee of a contractor deployed at the workplace, against an employee of the workplace 3. By any woman employee (direct or contractor’s employee), against a walk in customer or visitor to the workplace 4. By a woman be it a customer, visitor or common service personnel (e.g., house-keeping) against any of the above categories of employees, employed or deployed at the workplace
In all the above situations the responsibility being on the employer of the workplace, needless to emphasize that it is Employer of that Workplace whose responsibility is to ensure PoSH compliance and it is their ICC that must investigate and provide recourse/relief to the aggrieved women, including interim measures.
In any typical situation where the respondent against whom the complaint is made is the employee of any other contractor/agency or institution and the complained harassment occurred at the above work place, the ICC of that respondent who should initiate inquiry in the manner prescribed in the PoSH Act. However, the employer of the workplace is also equally responsible to ensure conduct of inquiry as by the ICC concerned and resolution in due course.
Safe Working Environment – Dissemination of Information & Awareness is key to effective implementation
While the PoSH Act mandates that every employer shall provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace, the unfortunate reality is that most employees/contract workers engaged in the industry come from very vulnerable backgrounds. Poverty causes dependence on work and that, in turn, causes a very real fear of retribution which makes the lack of courage to come forward stronger.
The following are the duties of the Employer as per the Act.
(a) Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace (b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4; (c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed; (d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry; (e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be; (f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9; (g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force; (h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; (i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; (j) monitor the timely submission of reports by the Internal Committee.
The constitution of India, guarantees its citizens “equality of status and opportunity”, under Article 14. A safe workplace is, therefore, a woman’s legal right. With improved access to education and employment, millions of women have found the opportunity to enter the workforce and the various skill development schemes introduced by the Central Government has helped them find a place in the competitive industry.