1. There is an existing global policy on common types of harassment. Is it mandatory to have one specific to sexual harassment?
It is mandatory to have an India-specific policy in line with the Act. While the definition of sexual harassment is common, the redressal procedure, rights, range of corrective action and compensation clause is different in each country.
2. As, POSH Act only covers women. Though policy be neutral, how can we defend male counterparts and complaints made by them?
A company can choose to write a gender-neutral company policy and protect all female, male and transgender employees from sexual harassment in the workplace.
Additionally, you can also include the same clause of zero tolerance for sexual harassment in your CoC policy.
3. Can an overseas member be part of an Internal Committee? Or is it mandated that she/he needs to be in India?
The Act is silent on appointing a foreign national to the IC.
When appointing an IC member it is important to appoint a person who is sensitised to the social realities in India, who is available when the inquiry is ongoing, and who is accessible to employees who wish to reach out.
4. There are mixed responses in on boarding external members to IC. What if there is no external member but internal legal is part of IC… Will I still be compliant?
According to section 4 of the PoSH Act, an external member must be appointed who either has worked amongst non-government organizations committed to the cause of women or any person that is familiar with issues relating to women.
The external member is an essential part of any Internal Complaints Committee as they provide an unbiased, neutral perspective. They are not involved or aware of any Internal company politics and employee relationships, and thus base their opinions and findings on the presented facts and circumstances.
5. The external legal firm says only < 10% of the organization has an IC setup, So is it a mandate and how is the gravity of the law in TN?
An employer can be subjected to a penalty of up to INR 50,000/- for
- Failure to constitute IC
- Failure to act upon recommendations of the IC
- Failure to file an annual report to the DO where required
- Contravening or attempting to contravene or abetting contravention of the Act or Rules
Where an employer repeats a breach under the Act, they shall be subject to:
- Twice the punishment or higher punishment if prescribed under any other law for the same offence.
- Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business
- All offences under the Prevention of Workplace Sexual Harassment Act are non-cognizable
6. What if there are only 1 or 2 members who are qualified to be in IC? What should we do, is it mandated to have 4 members?
It is important to select 4 members. The minimum quorum during a PoSH case enquiry/ meeting is 3.
7. Can HR be an IC member?
We do not recommend HR on the IC as sometimes employees cite this as company bias. However, it is understandable if HR is the only option if the company does not have any other female senior employees.
8. Can the member hold the post more than 3 years, if there is none qualified for that?
Preferably not. As per the letter of the law, it is advisable for a member to hold the post for only 3 years.
9. Is it 1 or 2 Annual reports to be filed? And who should file this? HR department or Statutory compliance personnel or External Members or in general IC members?
The Company is expected to file one annual report at the end of the year.
It is drafted on the company letterhead.
It is signed by the presiding officer, IC members and one director. It can be delivered in person or by post.
10. What if there is bias among IC members…Can HR step in?
In case of bias, the particular IC member can be replaced. An HR person can only step in if they are formally appointed to the IC. Else it is a breach of the confidentiality clause.