Note – This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace.
As work from home became the norm over the last couple of years because of the pandemic, the way people interact with their co-workers changed – thanks to more communication happening over video calls and messaging apps. Lines have blurred, and what constitutes as sexual harassment in the workplace has to be expanded.
In part one, of this two-part series, we dealt with a brief overview of the history of anti-sexual harassment laws in the country, the POSH Act, the IC, what constitues workplace harassment, and what to do if you face sexual harrassment. Now, we move onto how to file a complaint and the role of the IC once a complaint is made, among other things.
The complaint to the IC has to be submitted in the written form. In case the person giving the complaint is unable to condense it in writing, the IC is supposed to provide all reasonable assistance to make the same happen.
It is also recommended that the complaint is exhaustive and contains all the details to substantiate the complaint. If there is evidence (screenshots, videos, messages, or any other evidence), the same can be attached to the complaint and sent to the IC.
No, a POSH Policy and the IC exists to protect people from unwelcome sexual conduct. As long as there is consent, no coercion, and a complete understanding of what the relationship entails from both parties, it will not amount to sexual harassment.
With respect to asking out a colleague, a single, polite request is acceptable, and if the other person does not reciprocate or agree to the same, they should not be forced or coerced further.
If the relationship between two people in a workplace is casual, consent is the most important requirement. Forced consent or half-hearted agreement to an act or a relationship cannot be considered consent.
Inappropriate acts while a person is inebriated cannot be condoned due to the effects of alcohol, and the same can be examined by the IC if a complaint is filed.
You can disclose that you are also employed in the same workplace to the person, if your place of employment is not mentioned in your dating profile. After that, if they still want to meet or continue the conversation, what was discussed in the previous question will apply.
Do not take screenshots of their dating profile and circulate it internally, or ask the person why they are on the dating app in front of other colleagues at work. This has the potential to create a hostile work environment, and make them feel victimised.
Some companies have mandatory HR disclosures if you are involved with a colleague – it differs from workplace to workplace. There is no such mandatory disclosure required under the POSH Act.
Exercise caution when you engage in romantic relations with interns and students. There are power dynamics in workplace relations, and some relations can be viewed as an abuse of that hierarchy. The ability of the subordinate to refuse sexual relations diminishes when the act is being proposed by a person who is an authority figure, who can influence their career and their position in the workplace.
The age of consent in India is 18 years. Sexual relations with anybody below the age of 18 is considered non-consensual, and the person can be charged under the Protection of Children from Sexual Offences Act, 2012 if they have any physical relation (not just penetrative sex) with a person below the age of 18.
The victim can also file a police complaint, and the IC is required to facilitate the same. The victim can pursue both the IC complaint, as well as the police complaint parallelly.
After the Nirbhaya incident, India’s criminal laws that were drafted during the British era were amended in 2013 to include new provisions that make the acts of stalking, voyeurism, and sexual harassment as criminal offences under the Indian Penal Code.
The IC should forward the complaint to the person against whom the complaint is given within seven days of receiving the complaint, under the POSH Act.
Then the IC can ask the victim if they want to opt for conciliation. This is a process where the victim, the person against whom the complaint is given, and the IC members sit and discuss the issue to see if there can be any resolution. In some cases, the victim may want an apology to put things behind them and move forwards. Money or monetary settlement cannot be used to close the conciliation proceeding. If conciliation does not succeed, or if the victim does not opt for it, the IC can move on to the inquiry.
The IC will speak to the victim, the person against whom the complaint was given, and witnesses from both sides. The IC will look at the evidence presented by both sides. The proceedings of the IC will be recorded as well.
The IC will have to complete its inquiry within 90 days of receiving the complaint. In the event the same takes longer to conclude, it is preferable that the parties and the management is informed about the same.
The IC then forwards its finding in the form of a report, along with recommendations about the punishment (if the person is found guilty) to the management, who will then implement the IC’s Report. The finding of the IC will be sent to the victim, and the person against whom the complaint is given.
The IC can provide interim relief to the victim, including providing leave upto three months (this will be in addition to leave that is already available), restraining the person against whom the complaint is given from entering the workplace, or transfer either the victim or the person against whom the complaint is given to another branch so that the two of them do not work in the same premises.
In case the person against whom the complaint is given is the victim’s superior, they can transfer them to another team, to minimise contact.
The IC and the management should ensure that the victim’s work performance, decision pertaining to their bonus or other such subjective evaluation is not done by the person against whom the complaint is given while the complaint is pending.
No. The IC proceedings – from start to finish – are confidential in nature. Everybody involved in it – the victim, the person against whom the complaint is given, the witnesses, the members, the stenographer – are supposed to maintain confidentiality and not publish, disclose, or post about this on any forum, or to any other person.
Acts of sexual harassment occur mostly in closed and intimate settings. In many cases, it may not be possible to prove that it occurred. Inability to prove the complaint does not mean that the complaint is false or invalid.
However, if evidence in support of the complaint has been fabricated, or if the complaint is found to be malicious, then the IC can proceed to take action against the person who has made the complaint. This will not be an extension of the current proceeding. The proceedings against the person who has filed the false complaint will start afresh.
Depending on the severity of the offence, the IC can recommend anything from a fine, transfer, or termination. If the POSH Policy or company guidelines explicitly provide for certain action, that will be followed. The IC can also order for compensation to be paid to the victim, taking into consideration various factors such as loss in career opportunity, the mental trauma and pain suffered, medical expenses suffered for psychiatric or physical treatment.
Yes, the POSH Act only provides for women to complain about sexual harassment in the workplace. The gender of the person against whom the complaint is given is not specified.
However in recent times, organisations are expanding on the POSH Act and coming up with their own policies against sexual harassment in the workplace. These policies are gender-neutral, and some of them also offer additional protection to LGBTQIA+ individuals, and do not focus on gender binaries. This is a step in the positive direction.
Some organisations are also going beyond the scope of the statutory definition of sexual harassment under the POSH Act and including within their policies acts such as intimate partner violence when both the persons are employed within the company, and abuse of positions of power to make the subordinates engage in sexual acts. While these advances are slowly taking place, it will take time for sexual acts like stealthing (removing the condom during consensual protected sex and continuing the act of intercourse without informing the partner about the removal) to find its way to POSH Policies.
If your company has more than 10 people working and has not complied with the POSH Act, you can start by sending an email to your HR and superiors about a POSH Policy and the list of IC members.
Some workplaces may be defensive when employees ask about compliances, and if other colleagues also demand the same information, the management will be likely to respond as there is strength in numbers. If there is a union in the workplace, you can route your concerns to them as well.
There are consequences to employers who do not comply with the POSH Act, that range from a fine, doubling the fine amount, to losing their license or approval.
Further, companies have to make a statement in their annual report that they have complied with constituting an IC under the POSH Act, and they also have to send annual returns about compliances under the POSH Act.
It is mandatory for employers with more than 10 people working in the organisation to conduct awareness and training programs for sensitising employees with respect to the POSH Act. They are also supposed to display the company’s POSH policy at conspicuous places (this can be the notice board, cafeteria, any place frequented by the employees), and circulate the list of IC members with the contact details.
The employee is entitled to demand these at a workplace.
Chethana is a lawyer practising in family courts, trial courts, and in the Madras High Court. She also conducts POSH training sessions and assists in drafting policies for organisations. Her email ID is advchethana@gmail.com.