06 February 2020

Workshop on Prohibition,
Prevention and Redressal of
Sexual Harassment at
Workplace

By: -Thinking Legal

 Disclaimer
This Presentation is intended to provide general overview of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 and the rules thereunder. The Information
contained herein does not constitute legal advice. To deal with the
specific situations, please consult your appropriate advisor. The
answers to the situations in the presentation contain our views; the
Internal Complaints Committee, and the Court may have a different
view on it.
 Structure of the Presentation

Phase I Phase II Phase III Phase IV

• Introduction • Definitions • Key Obligations of • 10 ways to

Employer know your
• Vishaka under POSH Act
• Procedure for office is safe
Guidelines • Sexual complaint and
of 1997
Harassment redressal under IPC
• Procedure for
• Workplace
complaint and
redressal under
POSH Act
 Introduction

1 Vishaka v. State of Rajasthan (“Vishaka

Guidelines”), decided by Supreme Court
on 13th August 1997 [AIR 1997 SC 3011].
 Facts in Brief
• A Rajasthan Government female employee was brutally
gang raped at her workplace.

• A writ petition seeking redressal for sexual harassment

“
at workplace was filed in the Supreme Court of India.

• The Supreme Court used the opportunity to address the

lacunae in law which left women workers in the country
without any remedy when sexually harassed at
workplace.
 The Vishaka Guidelines
The Court acknowledged that sexual harassment at
workplace violates fundamental right of women to choose
any trade, profession or business of their choice. It laid
down “Vishaka Guidelines” for prohibition, prevention
and redressal of sexual harassment of women at
workplace.
 The Vishaka Guidelines
◇ Provides for constitution of complaints committee.

◇ Provides for mechanism for filing the complaint.

◇ Provides for duties of an employer and other related persons.

and other related aspects of sexual harassment.
◇These guidelines were replaced by The Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).

◇The POSH Act, 2013 has incorporated the same definition of sexual

harassment and the procedure as laid down in the Vishaka Guidelines.

 Understanding the Law

2 The Sexual Harassment of Women at

Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (“POSH Act”) read with
Indian Penal Code (“IPC”).
 The POSH Act
The POSH Act has been enacted with the objective:

• of preventing and protecting women against

workplace sexual harassment.

“ • to ensure effective redressal of complaints of sexual

harassment.

It clearly states that no woman shall be subjected to

‘sexual harassment at any workplace’.
Key Definitions
under POSH
 Sexual Harassment
If any of the following elements is present in relation any act or
behaviour of ‘sexual harassment’, it may amount to sexual
harassment at workplace:
◇ An implied or explicit promise of preferential treatment in the
employment;

“
◇ An implied or explicit threat of detrimental treatment in the
employment;
◇ An implied or explicit threat about present or future
employment status;
◇ Interference with work or creating an intimidating or hostile
environment;
◇ Humiliating treatment, likely to affect health or safety.
 Act of Sexual Harassment
‘Sexual Harassment’ would be any one or more of the
following unwelcome acts or behaviour, directly or by
implication:
◇ Physical contact and advances;

“
◇ A demand or request for sexual favours;
◇ Making sexually coloured remarks;
◇ Showing pornography;
◇ Unwelcome physical, verbal or non-verbal conduct
of sexual nature;
 Situation-1
• Ms. B, a junior colleague, was asked to organize an event for
the training of the employees.
• Mr. A, as the team leader submitted his report of the training
programme blaming Ms. B’s incompetency for the failure of
the event.

“
• Ms. B felt really embarrassed and filed a complaint for Sexual
Harassment against Mr. A alleging that the report was only
to harass her.

Question: Will the use of such harsh language be constituted as

sexual harassment because it is directed towards a junior female
colleague?
 Workplace

◇ Includes any Private Organization such as your

organization and
◇ Any other place visited arising out of or during the course of
employment.

“
A workplace could be any place where a working or
professional relationship exists. Some of the basic examples of
a professional relationship are:
• colleagues-peers,
• employee-employer,
• team leader-team members.
 Situation -2
• Ms. B is a new employee in the organization. She
shared her contact information with her colleagues.
• Mr. A , who was a member of Ms. B’s team and they
kept trying to initiate conversation with Ms. B over
social networking applications and texts after office
hours.

“
• Mr. A also started cracking obscene jokes and memes
to Ms. B.
• Ms. B filed a complaint of sexual harassment against
Mr. A.

Question: Does the conduct of Mr. A amount to sexual

harassment at workplace?
 Obligations of Employer
and Redressal
3 Mechanism
The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
 Key Obligations of an
Employer
The Act provides certain key obligation on the employer:
• Promote a gender sensitivity at workplace.
• Remove the factors creating a hostile working environment.
• Provide a safe working environment.

“
• Formulate and widely disseminate an internal policy for
prohibition, prevention and redressal of sexual harassment at
workplace.
• Display conspicuously at the workplace, the penal
consequences of indulging in acts that may constitutive
sexual harassment.
• Declare the names and contact details of all the members of
the Internal Committee.
 Key Obligations of an
Employer

• Organize workshop and awareness programmes.

• Provide assistance to the woman if she so chooses to
file a complaint.

“
• Treat sexual harassment as a misconduct under the
service rules and initiate action for misconduct.
• Monitor the timely submission of reports by the
Internal Committee.
• Publish the statistics of the complaints under the
POSH Act in the Annual Report of the Company.
 Key Obligations of an
Employer
An extract from the 2017-2018 Annual Report of Tata Steel

“
 Employer

Employer

Management Supervision Control

“ Person discharging contractual obligations with

respect to the employees

Person/board/committee responsible for formulation

of policies
 Consequences under
POSH Act
The punishment prescribed in the POSH act are as follows:

◇ Punishment prescribed under the service rules of the organization.

◇ Punishment like withholding of promotion, increments, etc. The

“
committee can also decide to terminate the employment.

◇ Punishment could also be deduction of compensation payable to the

aggrieved woman from the wages of the respondent.

◇ In case if the false or malicious complaint is filed, the Committee can

take disciplinary action against them.
Indian Penal Code
 Indian Penal Code
Outraging the modesty of woman [354]:
• An Assault or use of criminal force to any woman.
• Intending to outrage or knowing it to be likely to outrage the
modesty.
Punishable with an imprisonment for a term extending to five
years and shall also be liable for fine.

“
Sexual Harassment by Man [354A]: Sexual Harassment is
defined as:
• Physical contact and advances;
• Demand or request for sexual favours;
• Showing pornography against the will of a woman;
• Making sexually coloured remarks.
Punishable with a punishment of an rigorous imprisonment for a
term of three years and shall also be liable for fine.
 Indian Penal Code
Stalking [354D]:
• Following a woman and contacting or attempting to contact
such woman despite a clear indication of disinterest, or
• Monitors the use by a woman of internet, email or any other
form of electronic communication.
• Such actions or behaviour shall be punishable with an

“
imprisonment for a term upto three years and shall also be
liable for fine.

Insulting the modesty of a woman [509]:

• Any action including sounds, gestures, exhibiting any object
with an intent to insult her modesty.
• Such action or behaviour is a punishable offence with an
simple imprisonment upto three years and shall also be
liable for fine.
 Situation- 3
• Ms. B, a govt. officer and wife of another govt. officer, Mr. C
arrived at a dinner party thrown by a colleague. Mr. A,
another senior govt. officer was also present in the party.
• Mr. A, after getting drunk came very close to Ms. B and asked
her to sit with her as he wanted to talk about something. Mr.
A kept pulling her closer to him. She returned to her seat after
seeing the behaviour.
• After a while, Mr. A came back to her and asked her to come
with him. When Ms. B refused Mr. A slapped her posterior.
• Question: Does conduct of Mr. A amount to sexual
harassment?
Procedure for
Complaint and
Redressal
The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
 Complaint
Who can file: The aggrieved woman may make the complaint in
writing to the concerned committee within the period of three
months.
In case the aggrieved woman is not able to make the complaint
herself due to physical incapacity, any of following may file a

“
complaint:
• Her relative or friend;
• Her co-worker;
• An office of the National Commission for Women or State
Women’s Commissions;
• Any person who has knowledge of the incident, with the
written consent of the aggrieved woman;
 Complaint
In case the aggrieved woman is not able to make the complaint herself due
to mental incapacity, any of following may file a complaint:
• Her relative or friend;
• A special educator;
• A qualified psychiatrist or psychologist;

“
• The guardian or authority under whose care she is receiving treatment
or care;
• Any person who has knowledge of the incident jointly with any of the
above.

In case the aggrieved woman is not able to make the complaint herself due
to any other reasons, a complaint may be filed by any person who has
knowledge of the incident, with her written consent.
 Situation- 4

• During the training, Mr A, Ms. B and Ms. C started talking and Mr.
A helped Ms. B and Ms. C in getting a job in his office.
• Mr. A asked Ms. B out for dinner a few times and she agreed.
However, due to increase in work load, Ms. B refused to go to
dinner with Mr. A.

“
• At this Mr. A insisted that Ms. B go out for dinner with him as she
‘owed it to him’. Ms. B then told Mr. A that from then on their
relationship was to be strictly professional.
• However, Mr. A kept calling her and sending her emails. Therefore,
she started taking time off from work to avoid him.
• On seeing this, Ms. C filed a complaint of sexual harassment
against Mr. A stating that Mr. A is creating a hostile environment
for Ms. B.
 Question 1: Is Ms. C allowed to file a
complaint on behalf of Ms. B who is the

“
aggrieved woman in the case?

Question 2: Does the conduct of Mr. A

amount to Sexual Harassment?
 Confidentiality

The Act prohibits any dissemination of any information in :

• Contents of the complaint

• The identity and address of the complainant, respondent,

“
witness.

• Any information relating to the inquiry proceedings,

recommendations of the Committee and the Action taken
by the management to the public, press or media in any
manner.
 Internal Committee

 Every Employer is required to set up an ‘Internal Committee’

at each office or branch, of an organization which are
employing 10 or more employees.
 The presiding officer shall be a woman employed at a senior
level at the workplace, while a minimum of 3 members

“
including the presiding officer are to be present for
conducting the inquiry.
 Not less than two members- committed to cause of women,
involved in social work and have legal knowledge.
 One member- from NGO or committed to cause of women or
familiar with the sexual harassment issues.
 The Procedure
Incident of Sexual
Harassment

Internal Committee/
Conciliation
Local Committee

“
Report of
Inquiry

No Action by Punishment for

Action for
employer malicious or false
Misconduct
complaint.

Appeal to
Court/
Tribunal
4 The Policy
The Prevention of Sexual Harassment Policy
10 ways to know your office is
safe: -
• Has anti sexual harassment policy.
• The policy is easily accessible and periodically updated.
• Sexual harassment is a misconduct under service rules.
• A functional redressal committee for redressal of complaint is
in place.
• The Presiding Officer of the Internal Complaint Committee is
a senior female employee.
• At least half the committee members are women. Men and
other genders are also represented on the committee.
10 ways to know your office is
safe: -

• There is third party representative on the committee.

• Adequate information on internal committee members, its

role and redressal procedures is displayed prominently.

• All complaints are accepted in writing and if someone is

unable to do so, the committee members help them write.

• Conducts regular workshops and trainings to raise

awareness against sexual harassment at workplace.

Thanks!
Any questions?
You can reach us at:
◇ [email protected]
◇ +91-11-40193960