Creating Safe Spaces: Duties Of Employer Under The POSH Act.

About the Author

This article is written by Anani Salah, Final year Bcom. LLB student at Government Law College, Ernakulam

“A safe workplace is not a privilege — it’s a right”

Workers are the foundation of any industry; nowadays, although technology has grown significantly, operations still require the support and effort of manpower. In reality, they are indispensable. With the increasing involvement of employees in core functions, the responsibilities of employers have grown exponentially. However, this deeper engagement has also given rise to various forms of fundamental rights violations, including incidents of sexual harassment, both among employees and between employers and employees.

In light of these challenges, the role of employers has extended their duties beyond just providing fair wages or statutory benefits like Employees’ State Insurance and the Provident Fund. One of the predominant obligations of any employer is to ensure a safe and secure workplace for their employees. The significance of this duty was brought to greater attention with the landmark Vishaka case, which led to the formulation of the Vishaka Guidelines. These guidelines, which are based on the constitutional protection of fundamental rights, served as the core legal framework for addressing workplace sexual harassment until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. This blog tries to explore various duties of employers under the act and how they can build a safe and secure workspace for the women employees.

ORIGIN AND PURPOSE OF POSH ACT

Before the advent of the POSH Act, there was specifically no provision to penalize employees or employers in the case of any form of sexual harassment occurring in a workplace, except the following sections under the Indian Penal Code:

Section 354 -Sexual harassment and punishment Section 509-Criminalises word, gesture or act intended to insult the modesty of a woman

While the POSH (Prevention of Sexual Harassment) Act was enacted in 2013, which was influenced by the Vishaka Guidelines, which were laid down by the Supreme Court of India in the landmark case of Vishaka v. State of Rajasthan¹. It upholds the principles laid down in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). These guidelines showed the urgent need for a legal mechanism to address sexual harassment in the workplace. The POSH Act, however, tried to fill this void by providing a comprehensive legal framework to prevent, prohibit, and redress various forms of sexual harassment of women at work. It itself provided for the need to constitute committees for serving its purposes and stipulated proper duties for the employees as well.

KEY RESPONSIBILITIES OF THE EMPLOYER UNDER THE ACT

Section 2(g) of the POSH Act defines an “employer” concerning any department, office, branch, or unit of the appropriate government or a local authority as the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit or such other officer as the appropriate government or the local authority may specify. Any officer who engages in sexual harassment will be liable to face disciplinary punishment from their employer since it violates women’s human dignity, which is protected by Articles 14, 15, and 21 of the Indian Constitution. The inquiry conducted must also be fair and reasonable. Section 19 of Chapter 6 of the act deals with the duties of an employer. The employer is generally entrusted with an array of obligations. An indispensable and major role in the enforcement of the functions stipulated under this Act is primarily placed upon the employer. The primary responsibility for enforcing these functions is vested in the employer, and he plays a major role in their implementation. The following are the duties of an employer:

Constitute an Internal Complaints Committee (ICC).

Every workplace with 10 or more employees must mandatorily have an Internal Committee (IC) to handle complaints and give redressal to complaints related to sexual harassment. Every employer shall create by an order in writing such a committee. Such a committee will receive the complaint from the aggrieved, conduct inquiry, and make necessary recommendations to the employer. The ICC consists of a presiding officer (a senior woman employee), at least 2 members who have worked for the cause of women or have experience in social work or legal knowledge, and at least one external member who has worked in a non-governmental organization or who has previously worked for the cause of women. At Least half of the members must be women.The Delhi High Court in the case of Kamaljeet Kaur vs. Punjab and Sind Bank² held that the employer must ensure that the Internal Complaints Committee is constituted and functions effectively, failing which it may be held liable for negligence.It is therefore an obligation upon the employer to constitute such a committee failing to do so may attract penal consequences.

Publish a POSH policy.

Any organization with more than 10 employees must mandatorily create a sexual harassment policy. This must be communicated to all members on an annual basis, and must mandatorily be displayed on websites and in offices. It should be created considering the nature and size of the organization, and it would be preferable to be drafted by an experienced lawyer in a language/medium that will be best understood by the majority of the employees. The names and details of the ICC members must be present in it.

Provide a safe space and working environment to its employees.

Every employer must ensure to take actions to prevent any form of sexual harassment towards its employees as well as from people coming in contact with the employees in the workplace.In the case of Apparel Export Promotion Council vs. A.K. Chopraṣ³,it was established that employers are liable for sexual harassment by their employees, and that they must take proactive steps to prevent and address sexual harassment in the workplace.

Organize awareness programs and workshops.

This must be done at regular intervals for the members of the internal committee. Employers are also mandatorily entrusted with the duty to submit an annual report, which shall include details of those workshops and awareness programs conducted with regard to this.

Assist the woman if she prefers to make a complaint under the Indian Penal Code

An aggrieved woman can file a complaint of sexual harassment to the Internal Complaints Committee or, in its absence, to the Local Committee within 3 months of the incident. The organization is also obligated to aid the employee in filing a complaint against the accused. Under the POSH Act, 2013 (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act), if an aggrieved woman prefers to file a criminal complaint under the Indian Penal Code (IPC) for offenses like sexual harassment, assault, etc, the employer has specific duties to assist her. Essentially, the employer is expected to provide necessary documents such as copies of the complaint filed with the Internal Committee (IC) or any inquiry report if required. He must ensure protection by preventing any form of retaliation from the accused towards the aggrieved at the workplace.

Treat sexual harassment as misconduct

Under the service rules, standing orders, and employment policies, any form of sexual harassment must be treated as professional misconduct. This policy must clearly state initiating actions as a consequence for the same.

Display penal consequences of sexual harassment at any conspicuous place.

It is the duty of the employer to display penal consequences of any form of sexual harassment, which may be a demand or request for sexual favors or making any sexually colored remarks or showing pornography or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature in any noticeable place in the workplace. The employer must include the order that states the constitution of the Internal Committee and the names and details of the members of the committee.

Assist in securing attendance of respondents and witnesses.

Under the POSH Act, it is the employer’s duty to take all necessary steps to ensure the presence of the respondent and witnesses during the inquiry process. Their attendance is crucial for conducting a fair, complete, and effective investigation and for ensuring proper redressal of complaints. Employers must actively facilitate their participation to maintain the integrity and efficiency of the proceedings.

Employers must provide necessary information to the internal committee and local committee

CONCLUSION

Every employer has a significant duty under the POSH to create a safe, secure, and inclusive workplace free from sexual harassment. It is not merely a compliance obligation but more of a moral and social duty to uphold the dignity of every employee working in the industry. Establishing an internal committee, conducting regular awareness programs and workshops, ensuring timely redressal of complaints, and fostering a culture of zero tolerance are essential steps that every employer must prioritize. By sincerely fulfilling these duties, employers protect their organizations from legal repercussions and build a work environment where trust, equality, and professionalism can thrive together.