Employment10 December 2020By Gitanjali Balakrishnan
Part 1 — the scope of the POSH Act and certain important definitions.
Women's safety, both within and in relation to the workplace, is of paramount importance and has a direct role to play in their participation in the workforce. As per a United Nations Global Compact (UNGC) India study, female labour-force participation in India declined from 34% in 2006 to 24.8% in 2020. Several structural and socio-cultural factors contribute to this; concerns about personal safety and the fear of being sexually harassed prevent women from seeking employment or cause them to leave the workforce, perpetuating the systems that benefit from their exclusion.
In its landmark judgment in Vishaka v. State of Rajasthan, the Supreme Court, recognising the gap in legislation, framed guidelines to be followed by employers until an appropriate law was passed, and directed the Union of India to enact a law combating workplace sexual harassment. Sixteen years later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("the POSH Act") was enacted, followed shortly by the POSH Rules, 2013.
Sexual harassment
Under the Act, sexual harassment includes any one or more of the following unwelcome acts or behaviour, whether directly or by implication:
- physical contact and advances;
- a demand or request for sexual favours;
- making sexually coloured remarks;
- showing pornography;
- any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
It also includes the following circumstances, if they occur in relation to any such act or behaviour: an implied or explicit promise of preferential treatment in her employment; an implied or explicit threat of detrimental treatment; an implied or explicit threat about her present or future employment status; interference with her work, or creating an intimidating, offensive or hostile work environment; or humiliating treatment likely to affect her health or safety.
The crux of the matter is that where such an act is unwelcome — whether physical or verbal, express or implied — and of a sexual nature, it could amount to sexual harassment. This includes, but is not limited to, situations where a respondent abuses power in the workplace to elicit sexual favours in exchange for advancement or through threats. In determining what amounts to harassment, courts have held that a pedantic, limited approach cannot be taken; it depends on the specific facts and circumstances.
What is the scope of the Act?
The protection of the Act extends to a woman, of any age, in relation to a workplace, whether employed or not, who alleges she has been subjected to sexual harassment by the respondent. It includes a woman employed in a house or dwelling place. Notably, the redressal mechanism extends to women who are not employed at that particular workplace — students, clients, customers and others may make a complaint in relation to that workplace. The protection of the POSH Act does not, however, extend to individuals of other genders.
As per an NHRC report, about 92% of India's transgender individuals are unable to participate in any economic activity, and LGBTQ+ individuals are consistently excluded from and discriminated against at the workplace. Employers can take proactive steps to incorporate measures for the prevention and redressal of harassment of non-female employees in the service rules that govern the organisation. Such a gender-neutral policy cannot, however, substitute the measures the Act specifically mandates for the protection of women — including a dedicated POSH mechanism and compliances such as the Annual Report, failing which a fine may be imposed. While the Internal Committee can be empowered by internal policy to inquire into complaints by non-female employees, those inquiries are not protected under the POSH framework, and the Committee cannot exercise its statutory civil-court powers in doing so.
Definition of "employee"
"Employee" is broadly defined and includes persons hired on a regular, temporary, ad hoc or daily-wage basis, either directly or through an agent (including a contractor), with or without the knowledge of the principal employer — regardless of whether they are paid or work voluntarily, and whether the terms of employment are express or implied. It includes a co-worker, contract worker, probationer, trainee or apprentice, by whatever name called.
Definition of "workplace"
The definition of workplace is wide. It encompasses the organised and unorganised sectors and includes private-sector organisations and all kinds of establishments, societies, trusts, NGOs, hospitals, sports institutions, and places where service providers carry on commercial, professional, vocational, educational, entertainment, industrial, health or financial activities — and also dwelling places or houses.
With the proliferation of technology, the idea that a workplace is solely a physical construct is obsolete. The doctrine of notional extension of the employer's premises has been extended to the POSH Act: any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer, forms part of the workplace. Conferences and business trips or outings may reasonably be covered. In Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Delhi High Court observed that the factors to consider in determining whether a place is a "workplace" include its proximity to the place of work, the control of management over that place, and whether it is an extension or contiguous part of the working place.
Internal Committee and Local Committee
The Act lays down a grievance-redressal mechanism. Every employer must, by order, set up an Internal Committee at each office or branch of an organisation employing 10 or more employees, to inquire into and redress grievances of sexual harassment. At the district level, a Local Committee operates through a designated District Officer for grievances in the unorganised sector, where the complaint is against the employer, or in establishments with fewer than 10 employees where no Internal Committee has been set up.
Duties of employers
In addition to instituting the statutory mechanism, employers are duty-bound to, among other things:
- provide a safe working environment, including safety from persons coming into contact with the workplace;
- display the penal consequences of sexual harassment at a conspicuous place;
- organise regular workshops and awareness programmes for employees, and orientation programmes for Committee members;
- provide the Internal or Local Committee with assistance and facilities to deal with complaints and conduct inquiries;
- assist the woman if she chooses to file a complaint under the Indian Penal Code or any other law, and initiate action against the perpetrator;
- treat sexual harassment as misconduct under the service rules and initiate action accordingly;
- monitor the timely submission of reports by the Committee.
Employers can also incorporate POSH clauses — and the consequences of violating them — in agreements with employees and consultants, signalling a zero-tolerance approach.
In the next part of this article, we discuss the constitution of the Internal Committee and the redressal mechanism under the Act.
This note is for general information only, may reflect the law as it stood at the date of writing, and does not constitute legal advice. For advice on a specific situation, please seek independent counsel.
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