Who is an Employer Under the POSH Act?
Section 2(g) of the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, defines an employer as:
- The head of the department, organisation, undertaking, establishment, enterprise, institution, office, branch, or unit
- Any individual responsible for management, supervision, or control of the workplace, where management includes the person or board of committee responsible to formulate and administer policies for such organisations
- Any person discharging contractual obligations with respect to their employees
- In relation to a dwelling place or house, an individual or household who employs and benefits from a domestic worker, regardless of the number of such workers, time period and nature of their employment, and activities performed by such workers
What are the Duties of an Employer under POSH?
The POSH Act, 2013, imposes several employer obligations under Section 19. These primarily focus on workplace responsibility, such as prevention of sexual harassment at the workplace and enabling the Internal Committee (IC) to redress complaints promptly. These duties include:
- Providing a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace
- Display at any conspicuous place in the workplace, the penal consequences of sexual harassments and the order constituting the IC
- Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the IC
- Provide necessary facilities to the IC for dealing with the complaint and conducting an inquiry
- Assist in securing the attendance of the respondent(s) and witness(es) before the IC
- Make all relevant information available to the IC that it may require for complaint redressal
- Assist the aggrieved woman if she chooses to file a police complaint
- Initiate action under the relevant criminal laws against the perpetrator at the request of the aggrieved woman, and if the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place
- Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
- Monitor the timely submission of reports by the IC
Employer Obligations Around Awareness & Training
With respect to workshops and awareness programs, the employer shall:
- Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention, and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women
- Carry out orientation programmes and seminars for the IC members
- Carry out employee awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies, and any other body as may be considered necessary
- Conduct capacity-building and skill-building programmes for the IC members
- Declare the names and contact details of all the IC members
- Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act
Why Should Employers Comply with the POSH Act?
Complying with the POSH Act, 2013, is mandatory for every organisation with 10 or more employees, whether in the public or private sector. Meeting employer obligations is not optional. Non-compliance with the law attracts a monetary penalty of up to INR 50,000. Repeated offence of non-compliance can further lead to the cancellation of the business license.
Apart from punitive consequences stated above, non-compliance also leads to legal and reputational risks. When employees know that their organisation commits to creating a safe and respectful work environment, they are more engaged and driven towards organisational growth.
POSH Compliance is a precautionary compliance, and not a reactionary one. Therefore, it is critical that employers treat it that way. In today’s time, when opinions and criticism travel faster than ever via social media, and the younger generation wants to work with and buy from ‘sustainable’ and ‘conscious’ brands, an organisation’s promise for a healthy and positive workplace culture becomes imperative.
Penalties for Non-Compliance
Section 26 of the POSH Act lays down the penalty if an employer fails to comply with the Act’s provisions. It states that if the employer fails to constitute an IC under the Act, take action on the recommendations issued by the IC after the completion of an inquiry, file the annual report, or contravenes any provisions of the Act, they shall be liable for a fine that may extend up to INR 50,000.
Further non-compliance shall lead to cancellation of the business license, withdrawal, non-renewal, or cancellation of registration of business operations.
Rights of Employers and Employees Under POSH
While the law places certain obligations on an employer, they are also entitled to some rights arising from such obligations. These include:
- Employers have the right to take action on recommendations issued by the IC against a respondent who is found guilty of sexual harassment, or a complainant whose complaint is found to be false or malicious.
- Employers have the right to demand strict confidentiality during the inquiry proceedings from their IC to ensure that there are no breaches or contraventions to the POSH Act’s provisions.
- If the IC believes implementing certain interim reliefs such as transfer or a grant of leave are needed to ensure a smooth inquiry process, or to support the complainant, the employer can take such implementation in their hands.
Further, employees have the right to work in safe and healthy work environments and get their grievances redressed through the IC.
Frequently Asked Questions
- What is the employer’s responsibility if harassment occurs outside the office?
The POSH Act applies to an extended definition of “workplace” that goes beyond the office premises. It includes transport provided by the employer, client sites, off-site meetings, work-related travel, and any location where the employee is present due to their employment. Employer obligations under the Act, therefore, extend to these settings as well. - Can an employer be held liable for a third party’s harassment?
Yes. The POSH Act explicitly requires an employer to take action even when the perpetrator is not an employee, for example, a client, vendor, or contractor. Section 19 states that if harassment is committed by someone outside the organisation, the employer must initiate action under the relevant criminal laws at the request of the aggrieved woman. - What happens if an employer does not form an ICC?
Failure to constitute an Internal Complaints Committee (ICC) is a direct violation of Section 4 of the POSH Act, 2013. Under Section 26, the employer shall be liable for a monetary penalty of up to INR 50,000. If the offence is repeated, the penalty escalates and can result in cancellation or non-renewal of the business licence. - Is POSH applicable to employers with less than 10 employees?
The requirement to constitute an IC applies only to organisations with 10 or more employees. However, the POSH Act, 2013 itself applies to all workplaces regardless of size. Employers with fewer than 10 employees are not exempt from the law. Instead, complaints in such workplaces are handled by the Local Committee (LC), set up at the district level by the government. - What are the responsibilities of employees under POSH?
While the POSH Act primarily places obligations on the employer, the responsibilities of employees are equally important to a compliant workplace. Employees are expected to conduct themselves in a manner that is respectful and free from any form of sexual harassment. They must cooperate with the IC during any inquiry proceedings, maintain confidentiality of complaints and proceedings, and refrain from filing false or malicious complaints. Employees also have a responsibility to participate in POSH awareness programmes organised by the employer.
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