The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the PoSH Act or the Act) and Rules thereunder as the name goes-by, has been enacted to provide protection to women at their workplace against sexual harassment; prevention and redressal of complaints and for matters connected or incidental thereto.
The PoSH Act lays down steps to the employers to ensure that women are protected against sexual harassment at all the workplaces, be it in public or private.
The Act defines what conduct and act amount to sexual harassment, viz., the following circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:
The Act defines an ‘employee’ fairly in wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract laborers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
The Act defines an ‘employer’ as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organization.
Based on the Act and the guidelines laid down in the case of Vishaka v State of Rajasthan, Saurabh Kumar Mallick V Comptroller & Auditor General of India, the ‘workplace’ and ‘extended workplace’ are defined and expanded from the traditional office set-up to further places visited by the employee for the reasons arising out of and / or during the course of employment which also includes the transportation provided by employer to employee for commuting to and from the place of employment.
The Act requires the employer to constitute an ‘internal committee’ (IC) at each of its office/branch that comprises ten (10 Nos.) or more employees. This IC shall hear and redress the grievances and complaints pertaining to sexual harassment. If the employer fails to constitute it is liable to pay the fine prescribed under the Act.
The IC shall consist of a Presiding Officer who shall be woman employed at a senior level at the workplace from amongst the employees, with Members comprising not less than 2 members from amongst employees and an External Member from an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment. Not less than half of the IC Members shall be women and a minimum of 3 Members of the IC including the Presiding Officer are to be present for conducting the inquiry.
The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to act on the report within 60 days.
The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. The Complaints Committees have the powers of civil courts for gathering evidence. The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.
The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs. 5,000/- on the person who has breached confidentiality.
The Act requires employers to conduct education and develop policies against sexual harassment, among other obligations.
Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of license or deregistration to conduct business.
The government can order an officer to inspect the workplace and records related to sexual harassment in any organization.
Under the Act, which also covers students in schools and colleges, as well as patients in hospitals, employers and local authorities, will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to Rs. 50,000/-.
This Act extends to the whole of India.