Let's Talk PoSH - a Fireside Chat with Vasudevan, excerpts from TeamLease Webinar

Objective 

Every organisation wants to create a safe and healthy working environment that enables employees to work without fear of prejudice, gender bias and sexual harassment. There is an increased need for awareness of workplace harassment, particularly gender issues. A clear understanding of best practices will give HR professionals and Internal Committee the tools to make their workplace a safe and motivating place for all employees to work. But many questions need to be addressed. What may be the changes after the new Labour Code is implemented? What has changed in the last decade? ? How is it treated in the international market? What has changed in the previous decade?

 With Covid-19 coming, lock-downs and many offices opting for remote working, things have changed drastically, but what remains the same is harassment of women at the workplace. How is POSH implemented for the WFH option?

 

1. Can you explain PoSH’s relevance and importance to the audience? And also why is it still not spoken openly about?

 Workplace sexual harassment impacts the fundamental rights of women to quality (Articles 14 & 15) and their right to life and dignity. Also work in safe and secure environment, guaranteed by the Constitution.  A decade after the enactment of PoSH law, it is thought that this is a law for only women and the men shy away from understanding the nuances. While women are reluctant to report any harassment, fearing stigma and are even reluctant to discuss amongst their family members. Absence of adequate systems for confidential procedures and non-disclosure is also a major cause.

 

 

2. When was the POSH law implemented? And how were issues w.r.t sexual harassment handled before?               

Well! Despite obligations under the Constitution, the PoSH Law was enacted only in 2013. 50 years post independence, the Supreme Court issued Guidelines for prevention of sexual harassment at work place,    known as VISHAKA Guidelines.       The PoSH Act is an extension of the Supreme Court Guidelines and also fulfilment of the Government’s commitment on elimination of all forms of discrimination against Women (CEDAI)  - Convention on elimination of all forms of discrimination against women.   a special provision was also introduced under the Indian Penal Code to deal with the instances of sexual harassment   IPC: 354A (2013).             

1. A man committing any of the following acts—
   1. physical contact and advances involving unwelcome and explicit sexual overtures; or
   2. a demand or request for sexual favours; or
   3. showing pornography against the will of a woman; or
   4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

¹ Criminal Law (Amendment) Act, 2013

3. What has changed in the last decade that all of us should know?

The Ministry of Women & Child Development has empanelled several Institutions for training and awareness and also has published a comprehensive Guide for employers, and Complaint Committees.

While the implementation and awareness campaigns are high at corporate organisations, not every organization have followed suit. In fact there is lack of awareness due to reluctance by several organizations. As for MSMEs it is cost versus compliance dilemma- there are quite a series of webinars in the web-world like this instance and the entrepreneures should avail such opportunities to ensure alignment with this essential norm. 

 Many such organizations shy away from recruiting women even for positions which suits them and it has impacted the opportunities and livelihood of women.

 It is noteworthy that the SC and HCs continue to espouse the cause and have laid down various guidelines to ensure fair opportunities and practice guidelines for the employers.

  

4. Will the implementation of labour codes have an impact on POSH policy? If yes, then how?
   
   

The present labour laws provide adequate protection and the Standing Orders for workers provide for treating sexual harassment as a misconduct and has procedural remedies including appeal. But these are applicable largely to workmen, factories.

As for the Labour Codes, the IR Code has introduced specific Standing Orders for the Service Industry and this would apply for all such organizations.   The Wage Code prohits discrimination among employees on the ground of gender in matters relating to wages by the same employer in respect of the same work or work of a similar nature.. and also during recruitment unless for any employment it was restricted by law               

5. Now that WFH and hybrid working models are prevalent, how do work and other definitions change?

 

The WFH has drastically changed the ways of working and has brought complex issues especially women. As the definition of workplace is extensive and covers WFH as well, as the workplace, moves around the women while at work. WFH, electronic communication, web conferences, broad cast, etc., and any other place where the employer has administrative control are deemed to be workplace(s).

 

6. How does the international corporate community operate on this subject?

 

  Over 140 countries have introduced laws against workplace sexual harassment. This was the first  evolution and the next was encouraging women to report sexual harassment. The Me too Movement was an impetus post which there is a considerable increase in reporting across countries. While this new is encouraging not all countries have adequate mechanism and the gender diversity and inclusion remain to be a challenge for all.

     

 

POSH committees usually sit out of HQs, but a sexual harassment case can occur at the factory, branch or any other office premises? Do you think this creates a barrier for the affected individual in reaching out?              

 Post COVID,   place of seat is of no relevance and virtual is the reality. Also, it is a mandate that all branches/establishments should have the ICs or at least have regional Committees level. As for factories the organization should identify champions to raise the awareness at all levels by training them with train the trainer courses.   Dedicated email id and also IC Members/HR Champions with whom the aggrieved women can confide with would be best solution.

7. How much room does POSH have when conciliation between the aggrieved woman and the person against whom she has complained

 

The PoSH Act provides for conciliation prior to institution of the enquiry process or even during the enquiry, at the option of the woman.    If the women and the respondents agree, the Committee, or its nominee can facilitate a conciliation amongst parties, and record the same for approval by the Committee.

8. Does the victim or the person get leave or compensation?
   
   

Yes. The Act provides that the woman may be given a special leave during the pendency of the conciliation/investigation and such leave should not be adjusted from her regular entitlement.

As for compensation the Committee may determine adequate compensation, either by the Company or by the Respondent, viz. medical expenses, loss of earning, etc.

9. What is the POSH Policy for a visitor Intern or Onsite Employee?

 

The policy should cover adequate provisions for safety and reporting system for a visitor, intern or onsite employee. As for Intern from educational Institutions, the UGC regulations on PoSH would apply. The employer/Principal at whose work place the harassment occurred should lead for Redressal through appropriate forum, including police, wherever necessary.

 

 

10. What about unorganized and domestic workers ?

 

Un organized workers and domestics workers are covered by the Local Complaints Committee whereby the Government appoints nodal officer at every block, taluk, tehsil, etc., . Such official, if a complaint by a domestic worker Is prima facie established, shall report the same to the local police under Section 509 of IPC.