Protection file

Eight Years of POSH – True Protection or Glass Barrier? – Employment and HR

To print this article, all you need to do is be registered or log in to

There is a fine line between the moral obligation to respect a collaborator and the legal obligation to do so. The IC cannot superimpose its morality on the workforce, but must be guided by legal principles and empirically determine the outcome of the misconduct.

Sexual harassment is not so much sexual misconduct as an abuse of power. Two consenting adults can engage in any relationship, but translate it into a work environment and it becomes impossible to deal with the repercussions and sensitivities for those involved and those not involved. Sexual harassment in the workplace is a form of gender-based discrimination that violates a woman’s fundamental right to equality and the right to life guaranteed by the Indian Constitution and is criminalized outside the workplace by several provisions of the Indian Penal Code.

Sexual harassment in the workplace not only creates an insecure and hostile work environment for women, but also hampers their ability to perform and participate in the workforce equally in today’s competitive work environment. today. The POSH Act was enacted as comprehensive legislation to provide a safe, secure and conducive environment free from sexual harassment for all workers.

In line with this, in India, a certain level of sensitivity has crept in over the past decade regarding the adverse effects of sexual harassment for Indian companies or India Inc. Companies aware of the protection of women in particular take steps to ensure people are aware the tolerance bar is high and this principle applies to every employee.

The objective of this article is to return to the origin of these laws and to analyze the reality while keeping an eye on the future.

8 Year POSH Law – Goal, Meeting Expectations and Results

Since the enactment of the Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redress) Act in 2013 (“POSH” or “POSH Law” or “POSH Act”), many companies have advanced and appointed committees, sensitized their employees and ensured that the prescribed processes are put in place.

However, despite the noise and availability of public support for enforcing POSH laws, including the adoption of company POSH policies, there are no reliable statistics to analyze the extent to which employers are complying with POSH. and the number of complaints raised and resolved. One of the main deterrents in the POSH Act is license cancellation. There are only a few cases that are in the public domain where such measures have actually been taken.

The lack of information in this space makes one wonder if POSH Act is a toothless tiger.

As professionals practicing in this space, we have advised clients with even 1 employee to adopt and imbibe the principles of prohibition against sexual harassment.

Assuming (in the absence of data) that India Inc is diligent and both large and small companies have successfully adopted the policies and implemented them, the government mechanism to support corporate action is not in place. square. There is no readily available support or information, even for performing routine compliances like filing annual reports. Does anyone review these annual reports? Is there a consolidated document published after such a review – nothing is clear.

Over the past 8 years, there has not been enough case law that could offer to clarify various aspects of the law, including what constitutes sexual harassment, obligations of an employer/IC, remedies/safeguards available to the victim, the process for handling a complaint, what is allowed in the context of an investigation, etc. or have a victim file. The stigma always attaches to the victim.

Businesses are seriously complying, but the law fails to bring compliance in the true spirit of compliance. It is difficult to say whether women are actually safer in the workplace after 8 years of this law being enacted.

Gaps and Ambiguities – Measures of Effectiveness

The POSH Act was introduced 16 years after Vishakha’s guidelines were issued. Therefore, from the beginning, the spirit of this law was not as diligent as it ideally should have been. The same is reflected in the character of the law too. There are some ambiguities in the law which, if corrected, should take a step closer to a strong implementation of the same and hopefully make workplaces safer for women and others.

Protection to foreigners

The POSH law generously extends protection to women outside of the workplace, such as a salesperson, customer, or any visitor to the premises. However, how such a woman will gain access to the relevant company’s IC and whether an IC can possess jurisdiction to call such a foreigner as a witness is unclear. There are no case studies that indicate what can be done in cases like this.

Protection against strangers

The POSH Act also includes within its scope any harassment that occurs in the workplace. This could mean that an employee alleges harassment against a customer or anyone outside the organization. For example: harassment of a company customer during a meeting. Again, the powers of the IC and what it can recommend are unclear.

Click here to continue reading. . .

Originally posted by Corporate HR magazine.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

POPULAR ARTICLES ON: Employment and HR in India

Changes in the new labor codes

Defenders of SS Rana & Co.

The Ministry of Labor and Employment introduced four bills in 2019 to merge 29 central laws related to labor law, thereby simplifying and modernizing labor regulations in a labor-intensive country like India.

Right to legal representation in labor disputes

Light Law Partners

The Government notified the Industrial Relations Code 2020 on September 29, 2020 to consolidate the three existing Labor Acts, the Trade Unions Act 1962, the Industrial Employment (Standing Orders) Act 1946 and the 1947 on labor disputes.

Wages (in accordance with the new wage code)

Singhania & Partners LLP, attorneys and barristers

The Wages Code, 2019 (“Code”) received the President’s assent on 28 September 2020. The Code focuses on simplifying existing labor legislation dealing with the payment of wages, overtime, bonuses. .