POSH compliance for employers in Tamil Nadu

The Act protects an aggrieved woman, defined in Section 2(a) as a woman of any age, whether employed or not, who alleges that she has been subjected to sexual harassment by a respondent. In a dwelling place or house, the protection extends to a woman employed there. The complaint mechanism is therefore not limited to women on the payroll.

Employee is defined broadly in Section 2(f). It covers regular, temporary, ad hoc and daily wage work, engagement directly or through an agent, a contractor engaged with or without the knowledge of the principal employer, work for remuneration or without it, voluntary work, and terms of employment that are express or implied. A co-worker, contract worker, probationer, trainee and apprentice are all employees for the Act.

Workplace in Section 2(o) includes government departments and local authority offices, private sector organisations and ventures, hospitals and nursing homes, sports institutes and stadiums, places visited by an employee during the course of employment including transport provided by the employer, and a dwelling place or house. The employer is the head of the department in a government workplace and the person responsible for management, supervision and control in a private workplace under Section 2(g).

Section 2(n) lists five forms of sexual harassment: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The list is inclusive, and the conduct must be unwelcome.

Section 3(2) adds circumstances that may amount to harassment when connected with the conduct: an implied or explicit promise of preferential treatment in employment; an implied or explicit threat of detrimental treatment; an implied or explicit threat about present or future employment status; interference with work or an intimidating, offensive or hostile work environment; and humiliating treatment likely to affect health or safety.

The definition does not require a series of incidents. A single act can fall within Section 2(n). The context in Section 3(2) often decides whether a remark, message or request was unwelcome, so the complaint record should set out what was said or done, when, where and in whose presence.

Section 4(1) requires every employer to constitute an Internal Complaints Committee by an order in writing. Where the offices or administrative units of the workplace are at different places or at divisional or sub-divisional level, an Internal Committee must be constituted at all administrative units or offices.

The composition is prescribed in Section 4(2): a Presiding Officer who is a woman employed at a senior level at the workplace; at least two employee members, preferably committed to the cause of women or with experience in social work or legal knowledge; and one member from a non-governmental organisation or association committed to the cause of women, or a person familiar with issues relating to sexual harassment. At least one half of the total members must be women. If a senior level woman employee is not available, the Presiding Officer may be nominated from another office or unit, and then from another workplace of the same employer or another department or organisation.

The Presiding Officer and members hold office for a period not exceeding three years, as the employer specifies under Section 4(3). The external member is paid the prescribed fees or allowances under Section 4(4). Section 4(5) sets out the grounds on which a Presiding Officer or member must be removed, including a contravention of Section 16, a conviction or pending criminal inquiry, a finding or pending disciplinary proceeding, or abuse of position.

Section 6 provides the district-level route. The District Officer constitutes a Local Complaints Committee to receive complaints from establishments where an Internal Committee has not been constituted because the establishment has fewer than ten workers, or where the complaint is against the employer. A nodal officer in every block, taluka and tehsil in a rural or tribal area, and in every ward or municipality in an urban area, receives complaints and forwards them to the Local Committee within seven days under Section 6(2).

Section 19 lists the employer's duties. The employer must provide a safe working environment, including safety from persons coming into contact at the workplace; display at a conspicuous place the penal consequences of sexual harassment and the order constituting the Internal Committee; organise workshops and awareness programmes at regular intervals and orientation programmes for committee members; provide facilities to the committee for dealing with the complaint and conducting the inquiry; assist in securing the attendance of the respondent and witnesses; and supply the information the committee requires.

The employer must also assist a woman who chooses to file a complaint under the penal law, cause action to be initiated against the perpetrator where the law permits, and, where the perpetrator is not an employee, act if the aggrieved woman so desires. Sexual harassment must be treated as misconduct under the service rules, with action initiated accordingly. The employer must monitor the timely submission of reports by the Internal Committee.

Two further duties sit outside Section 19. When the committee recommends interim relief under Section 12, the employer must implement the recommendation and report the implementation back to the committee. When the committee submits its report under Section 13, the employer must act on the recommendation within sixty days.

Section 16 prohibits the publication, communication or making known to the public, press or media of the contents of the complaint, the identity and addresses of the aggrieved woman, respondent and witnesses, information relating to conciliation and inquiry proceedings, the recommendations of the committee, and the action taken by the employer or District Officer. Information about the justice secured may be disseminated without disclosing the identity of the woman or witnesses.

Section 17 makes a person entrusted with handling the complaint, inquiry, recommendations or action liable to a penalty under the service rules, or in the prescribed manner, for contravening Section 16. Access to the file should be limited to the committee, the employer's authorised officer and any person needed for the inquiry.

The Internal Committee prepares an annual report for each calendar year and submits it to the employer and the District Officer under Section 21. The employer includes the number of cases filed and their disposal in its annual report, or intimates the numbers to the District Officer where no annual report is prepared, under Section 22. Section 25 allows the appropriate Government to call for information and inspect records and the workplace.

The Act was preceded by Vishaka v. State of Rajasthan, where the Supreme Court laid down guidelines under Article 32 for preventing sexual harassment and handling complaints. The guidelines required a complaints committee headed by a woman, with at least half its members women and a third-party representative, and they were declared binding under Article 141 until legislation covered the field.

In Medha Kotwal Lele v. Union of India, the Supreme Court directed that the complaints committee be treated as an inquiry authority under the Central Civil Services (Conduct) Rules, 1964 and that its report be treated as an inquiry report. The Court also directed amendments to the Industrial Employment (Standing Orders) Rules and kept the matter under a continuing mandamus.

The inquiry before the Court in Aureliano Fernandes v. State of Goa took place under the Vishaka Guidelines, with the committee treated as an inquiry authority under the service rules. The Supreme Court held that the employee must be told the allegations, supplied the evidence and allowed a reasonable opportunity to answer them, and it tested the inquiry against the requirement that the rules be followed as far as practicable. Eighteen meetings in thirty-nine days, with six depositions handed over and forty-eight hours to reply, fell short of that standard. The employer's disciplinary authority acts on the committee's report under the service rules.

Apparel Export Promotion Council v. A.K. Chopra held that the disciplinary authority is the sole judge of facts and that a court should not interfere with findings unless they are unsupported by evidence or perverse. The inquiry must still give a reasonable opportunity to the employee. An employer that treats the committee's report as a formality invites challenge on both grounds.

Section 26(1) imposes a fine of up to fifty thousand rupees where the employer fails to constitute an Internal Committee under Section 4, fails to take action under Sections 13, 14 and 22, or contravenes or attempts to contravene or abets the contravention of other provisions of the Act or the rules. Section 26(2) provides that a repeat conviction attracts twice the punishment, subject to the statutory maximum, and cancellation, withdrawal or non-renewal of the licence or registration required to carry on the business.

A compliance check should begin with the written order constituting the committee. Check the composition against Section 4(2), the term against Section 4(3), the external member's engagement and fees, and whether every administrative unit has a committee. Check the display required by Section 19(b), the training record, the facilities provided for inquiries, and the process for implementing interim relief and the final recommendation within the statutory periods.

The records should show the date of each complaint, the date of the report, the date of the employer's action, and the outcome. They should also show that confidentiality was maintained and that the annual report under Section 22 was prepared. A committee that exists on paper but has no external member, no training and no inquiry record is exposed under Section 26.