Workplace Harassment & POSH: Your Legal Rights and Step-by-Step Procedure for Registering an Internal Complaint

Author: Aditya Sharma

Introduction

Sexual harassment at the workplace is one of those issues that most often goes unreported due to lack of either awareness or knowledge of the procedures involved. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or the POSH Act, 2013 was formulated to specifically address this lacuna and empower women in the workplace by establishing their right to a safe work environment and laying down the procedures for registering and addressing complaints.

This article provides you with the information necessary to both understand the provisions of the POSH Act and follow the procedures for registering an internal complaint in case you are faced with workplace harassment.

What Is the POSH Act?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 governs all workplaces in India, organised and unorganised, private and public. Any establishment employing ten or more workers on a regular basis is mandated to set up an Internal Committee to receive and inquire into complaints of sexual harassment. Smaller establishments and those who have a complaint against the employer, however, have to report the case to the Local Committee, constituted by the district authorities.

It is important to note that the Act covers  and therefore protects every woman employee in an establishment falling under the Act’s jurisdiction. This includes full-time and part-time employees, apprentices, trainees, workers on daily wages or on contract, employees working from home, as well as visitors and vendors. Men, transgender and non-binary workers do not enjoy the same level of legal protection, although many companies provide gender-neutral policy coverage voluntarily.

The POSH Act defines a “workplace” as including any location where an employee is subjected to sexual harassment, verbally, physically or otherwise, including work-related travel, visits to worksites, virtual workplaces or even social interactions occurring in extension of professional duties.

What Does the POSH Act Say about Sexual Harassment?

The POSH Act defines sexual harassment as “unwanted” attention  physical or verbal which could include demands for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome behaviour of a physical, verbal or non-verbal nature.

In addition, the Act considers unwelcome physical or verbal advances, gestures or any other conduct of a sexual nature as harassment “in connection with” sexual harassment, including threats or promises related to a change in employment status, or any conduct which interferes with work performance or creates an intimidating, hostile or abusing work environment.

According to the Act, “unwelcome” means that it was not readily agreed to or accepted by the employee. It is important to note that several actions and behaviours are defined as sexual harassment not in and of themselves, but in connection to any of the above-given acts. For example, a promise of promotion in exchange for sexual favours is considered harassment “in connection with” sexual harassment, just as a threat to cause damage or injury to reputation unless demands are met would be considered such.

In any sexual harassment case, the complainant may also be subjected to victimisation in the form of adverse action by the employer including denial of benefits or opportunities and the law explicitly prohibits any such response. Additionally, the complainant or witness has the legal right to remain anonymous  although it is strongly advised to file a formal, registered written complaint with the IC, since a verbal or anonymous complaint would not enable a proper inquiry.

What Are My Rights under the POSH Act?

A woman working in a place covered by the POSH Act has a number of clearly defined rights:

1. The right to a safe working environment, and the right to a remedy in case it is violated;

2. The right to file a formal complaint with the IC, and to remain anonymous if necessary;

3. The right to confidentiality of the complaint, and of any information obtained in relation to it, from the point of filing onwards;

4. The right to be provided interim relief during the duration of the inquiry;

5. The right to a fair hearing conducted by members of the IC, including the right to produce evidence, and the right to legal consultation outside the IC proceedings;

6. The right to appeal against the decision of the IC;

7. The right not to suffer adverse consequences of any kind, including victimisation, for filing the complaint.

How To File an Internal Complaint

Below are the detailed steps for filing an internal complaint according to the procedure laid down in the POSH Act.

Step 1: Find Your Internal Committee (IC)

Every organisation employing ten or more people on a regular basis must establish an Internal Committee (referred to as the ICC), details of which including contact information must be displayed prominently in the workplace. The Committee must consist of a chairperson, who is a senior-level woman employee, and at least two other women, and one man, with the majority of the Committee’s members being women. The other members of the IC can be full-time employees, as well as external experts, with at least one of them having a government-appointed post in an NGO. You can contact the IC in case anyone you know has suffered sexual harassment in the workplace.

Establishments with less than ten employees, or in which a woman employee is filing a complaint against the employer, do not have an Internal Committee, and such complaints would be addressed by the Local Committee appointed by the district authorities.

Step 2: File the Written Complaint with the Internal Committee

The complainant (a woman, or her nominee in the event she consents to the complaint being filed on her behalf) can present a written and signed complaint to the Internal Committee (IC) or her choice of nominee, who can help her draft the complaint. When drafting the complaint, it is important to remember that a written and signed complaint is necessary for initiating any action under the POSH Act. The complaint must be submitted within three months of the date of the incident/s (or the last incident in case of multiple incidents).

The written complaint must contain the relevant details of the incident, including (if known) the identity or identities of the person or persons accused of harassment, and evidence such as SMSes or emails, call records, CCTV footage, or any other relevant documents or witness statements. In case of any delays in filing beyond the three-month deadline for reasons beyond your control, it is possible to request the IC to accept the late filing, on the grounds of sufficient justification.

The Internal Committee is bound by law to acknowledge the receipt of the complaint in writing and inform the complainant that it will be addressed in accordance with the POSH Act. Within a week of receiving the formal complaint, the IC will conduct a preliminary inquiry into the complaint to assess whether it falls under the definition of sexual harassment. If it does not  for example, if there is no harassment involved, or the complaint concerns an entirely different issue the IC must inform the complainant in writing that it does not fall under the jurisdiction of the Internal Committee and recommend that the complainant file a complaint with a different authority, if applicable.

Step 3: Request Conciliation (Optional)

Before moving to the formal inquiry stage, either party can request a conciliation session, which is not mandatory and can be done only by the complainant and not by the respondent. The conciliation procedure is a voluntary process in which the IC attempts to bring both parties to an agreement on the resolution of the complainant’s grievances. It is important to note that the settlement cannot contain any clause demanding or requiring a monetary payment from the respondent.

If the conciliation succeeds, the IC shall record the terms of the settlement and close the case.

Step 4: Serve Notice to the Respondent

If the Internal Committee decides that the complaint falls under the jurisdiction of the Internal Committee and conciliation does not resolve the issue, it must serve notice of the complaint to the respondent, preferably in writing, within 7 working days of receiving the formal complaint. Upon receiving the notice, the respondent shall have ten working days to reply to the complaint, submitting any evidence, documents or witness statements.

Step 5: Request Interim Relief (Optional)

At any point during the proceedings, the complainant can ask for interim relief – that is, measures to protect her wellbeing while the complaint is being processed. Such measures can include transferring either the complainant or respondent to a different workplace/division, granting leave to the complainant in addition to her existing entitlements (up to a maximum of 3 months), or prohibiting the respondent from writing appraisals or evaluations of the complainant’s performance.

It is important to note that the complainant has the right to request such measures at any time, and the IC will recommend them to the employer, who will have to take them into account.

Step 6: Formal Inquiry

The formal inquiry is similar in many ways to a judicial proceeding it is held in camera in private, and the IC has the powers of a civil court for the purposes of issuing notices. The respondent and the complainant both have the right to present their statements to the Committee, respond to evidence presented by the other party and present evidence, with the complainant having the right to legal consultation. It is important to note that neither party can have legal representation at the proceedings of the IC  however, they can obtain such representation independently.

The IC shall take written statements from the complainant and the respondent, interview witnesses separately and take note of any other evidence, such as documents or electronic media files relating to the case. The IC shall hold private proceedings throughout the duration of the inquiry, and shall maintain confidentiality in accordance with the law. The formal inquiry must be completed within 90 days of filing the formal complaint.

Step 7: Inquire Report

After completing the inquiry proceedings, the Internal Committee shall prepare a report summarizing their findings within 10 days of its conclusion.

If the allegations have been found to be unsubstantiated, the Internal Committee will record this finding as well and close the case. However, if the allegations have been found to be substantiated, the Internal Committee shall report its findings to the employer along with its recommendations of action, which can vary from issuing a warning to the respondent to withholding increments, bonuses or promotions.

Step 8: Employer’s Action

The employer is obliged to take action in accordance with the IC’s recommendations within 60 days of receiving the report. Action can range from formal censure of the respondent to the withholding or deduction of salary or other benefits, or any combination thereof as permitted or mandated by the organisational policy.

If the Internal Committee’s report recommends compensation to the complainant be paid from the respondent’s salary/benefits, the employer shall deduct such sums from the respondent’s salary, if possible, and if not, recover them as dues from owed money. It is also vital to remember that no monetary compensation can be demanded from the employer unless it is specifically mandated by the Internal Committee.

Step 9: Appeal Against IC Report

Either party against whom the recommendation of the Internal Committee applies can appeal against its report and recommendations to a higher authority within 90 days of its receipt. Such appeals must be made in accordance with the organisational policy, as applicable.

A Few Final Remarks

It is essential to remember that time limits given by the POSH Act are guidelines for the IC, and that missing a deadline does not invalidate ongoing proceedings  the Supreme Court has ruled that since the POSH Act does not stipulate any specific penalty for failure to meet time requirements, an IC cannot be penalised for missing a deadline, although it should note the reasons for the delay in its report.

Additionally, note that the POSH Act makes secrecy and the preservation of anonymity obligatory  Section 16 specifically prohibits disclosure of any information pertaining to a sexual harassment complaint in any manner, and any such disclosure is a punishable offence.

Finally, remember that an organisation’s failure to constitute an Internal Committee or otherwise follow the requirements of the POSH Act can result in a fine of up to ₹50,000 for the first offence, with subsequent offences potentially resulting in stricter penalties, up to closure of the business. If you find that your workplace does not have an Internal Committee, you can file your complaint with either the Local Committee or the government’s SHe-Box website, which will forward it to the Local Committee.

Employer’s Responsibility under the POSH Act

The employer has several responsibilities under the POSH Act, including the establishment of the Internal Committee (or, in its absence, observing all required procedures for filing a complaint), providing safe working conditions and displaying the names and contact details of Internal Committee members prominently within the workplace, providing training and instructions to its members, and ensuring that sexual harassment is treated as a disciplinary offence.

In addition, every employer under the POSH Act is responsible for filing an annual report with the district officer concerned, informing them of the status of sexual harassment complaints.

These responsibilities apply to every establishment falling under the jurisdiction of the POSH Act, and the employer of such an establishment can be punished in accordance with the provisions of the POSH Act for failing to perform any of these duties, in addition to any other liabilities they may incur under the POSH Act for committing sexual harassment.

Common Myths and Misconceptions

There are several misconceptions and myths surrounding sexual harassment complaints that have been debunked repeatedly. Below are some commonly held beliefs that have been proven incorrect.

Myth Fact I can file a complaint only if the harassment occurred inside the office. No the definition of “workplace” includes not only the office but also work-related travel and other work-related premises, as determined by the Supreme Court. Filing a complaint will make me fired or penalised in other ways. No the POSH Act prohibits victimisation of a complainant or witness for filing a complaint in good faith. I cannot file a complaint on my own  I need a lawyer to represent me. No neither the complainant nor the respondent can be represented by a lawyer before the Internal Committee (IC). However, either the complainant or the respondent is entitled to consult a lawyer independently.

What Should I Do If I Have Experienced Harassment?

Along with knowing how to file a formal complaint, it is helpful to know what steps to take while considering filing the complaint in order to ensure that no evidence is lost or denied, and that no opportunities for redressal are foregone. Below is a non-exhaustive list of what you should do if you are a victim of sexual harassment.

Keep track of everything that occurs in connection with harassment record the statements, date/time/place of incidents, etc. Do not delete any evidence preserve it instead. Ask around to find potential witnesses and their contact details. Remember the contact details for your Internal Complaint Committee (IC)  they must be prominently displayed in your workplace. Consult trusted colleagues, friends or counsellors while considering your options. File a written complaint, as only a written complaint will be processed according to the law.

FAQs

1. Who can file a complaint of sexual harassment under the POSH Act?

Any woman employee who has suffered sexual harassment can file a complaint under the POSH Act. This includes not only permanent and contract employees but also visitors, apprentices, trainees, and vendors.

2. Are there any time limits for filing a complaint?

Yes, a complaint should be filed within 3 months of the incident occurring (or the last incident if there have been multiple incidents). If the Internal Committee is satisfied with the reasons for the delay, it can condone it, with the additional time not exceeding 3 months.

3. Can I file my complaint anonymously?

A woman employee can file a written and signed complaint to the Internal Committee (IC), but cannot remain anonymous, since a formal inquiry requires that both the respondent and the complainant be informed of the allegations. However, the law strictly protects the complainant’s confidentiality, and her anonymity cannot be disclosed by the IC.

4. Can I get legal assistance?

Neither the complainant nor the respondent can get legal representation before the Internal Committee (IC). However, either party can get legal assistance independently.

5. Are there any time limits for completing all procedures?

Yes, the Internal Committee (IC) must complete the inquiry within 90 days of the date of filing the formal complaint. The IC must submit its report within 10 days of completing the inquiry. The employer must take action in accordance with the recommendation within 60 days of receiving the report. Any party to the dispute not satisfied with the report can appeal to a higher authority within 90 days of receiving the report.

6. What can I do if my organization does not have an Internal Committee?

You can file your complaint either with the Local Committee or with the government’s e-She box, which will direct it to the Local Committee. The organisation concerned will be penalised for not establishing an Internal Committee.

7. What if my employer penalizes me for filing a complaint?

Your employer cannot victimize you for filing a complaint in good faith, and such victimization can also be punishable under the law.

8. What should I do if the Internal Committee finds that the complaint was false?

If the Internal Committee concludes that the complaint was false, the IC must recommend action against the false complainant, who can be punished according to the employer’s service rules, on the grounds of submitting a knowingly false complaint. However, it is extremely rare that such a recommendation would be issued, since false complaints are not explicitly mentioned in the POSH Act.

Conclusion

The POSH Act exists to ensure that no woman has to choose between her dignity and her livelihood and in order to do that, it is essential to know not only your rights, but also the precise procedure to obtain justice. If you are a woman employee and you are facing harassment at the workplace, remember to keep records, know the Internal Committee’s contact information and always use the resources provided to you by law.