Drafting a Compliant PoSH Policy: Key Clauses & Common Mistakes for Indian Workplaces

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the 'PoSH Act') mandates every employer to take proactive steps to prevent sexual harassment at the workplace. This includes formulating and disseminating a written PoSH policy. As per Section 4 of the PoSH Act, employers are obligated to constitute an Internal Committee (IC) for redressal of complaints of sexual harassment. The Act defines 'workplace' broadly to include any place visited by the employee during the course of employment, including transportation provided by the employer.

• Definition of Sexual Harassment: The policy must clearly define sexual harassment as per Section 2(n) of the PoSH Act, encompassing unwelcome acts or conduct, including unwelcome sexual advances, requests for sexual favours, and other verbal, non-verbal, or physical behaviour of a sexual nature. It should also include unwelcome conduct that creates a hostile work environment or is linked to employment benefits.
• Scope and Applicability: Clearly define who the policy applies to – all employees (permanent, temporary, contractual, interns), and potentially third parties like clients or vendors, if the workplace extends to interactions with them.
• Prohibited Conduct: Detail specific examples of behaviours that constitute sexual harassment, aligning with the Act's definitions. This helps employees understand what is unacceptable.
• Grievance Redressal Mechanism: Outline the procedure for lodging a complaint, including the role and composition of the Internal Committee (IC) as mandated by Section 4 of the PoSH Act. This should detail the timelines for inquiry, investigation, and the process of submitting the inquiry report to the employer and the aggrieved person.
• Confidentiality and Non-Retaliation: Assure employees that all complaints will be handled with utmost confidentiality, and explicitly state that no retaliation will be taken against any employee who lodges a complaint in good faith, as per Section 11 of the PoSH Act.
• Consequences of Non-Compliance: Clearly state the disciplinary actions that may be taken against the harasser, ranging from warnings to termination, and also mention potential penalties for the employer if the policy is not implemented effectively, as stipulated in Section 26 of the PoSH Act.
• Awareness and Training: Commit to regular awareness programs and training sessions for all employees and members of the IC to ensure understanding of the policy and the Act.

Many organizations inadvertently create non-compliant policies by overlooking critical aspects. Here are some common pitfalls:

• Vague Definitions: Using generic or unclear definitions of sexual harassment that do not align with the comprehensive definition provided in Section 2(n) of the PoSH Act.
• Inadequate IC Constitution: Failing to constitute the Internal Committee (IC) correctly as per Section 4 of the PoSH Act, which mandates a minimum of three members, with at least one woman member and a Presiding Officer who is a woman. It also requires one member from an NGO or association committed to the cause of women, or a person familiar with the issues of sexual harassment.
• Ignoring Third-Party Harassment: Not addressing instances of sexual harassment perpetrated by or against non-employees who interact with the organization, such as clients or vendors, which can still fall under the purview of the workplace.
• Lack of Clear Timelines: Omitting specific timelines for complaint registration, inquiry, and report submission, which can lead to delays and dissatisfaction with the redressal process.
• Insufficient Confidentiality Measures: Not adequately emphasizing or enforcing confidentiality, leading to potential breaches and discouraging employees from reporting.
• Absence of Non-Retaliation Clause: Failing to explicitly state and enforce a strict non-retaliation policy for complainants, witnesses, or those involved in the inquiry process.
• Outdated Policies: Not reviewing and updating the policy periodically to reflect any amendments to the PoSH Act or relevant judicial pronouncements.

A well-drafted policy is only the first step. Effective implementation and ongoing compliance are paramount. This includes:

• Dissemination: Ensuring the policy is communicated to all employees in a language they understand.
• Regular Training: Conducting mandatory and recurring training sessions for all employees, including senior management and the IC, on the policy, the Act, and their roles and responsibilities.
• IC Functioning: Ensuring the IC is functional, well-trained, and operates within the prescribed timelines.
• Record Keeping: Maintaining accurate and confidential records of all complaints, inquiries, and actions taken, as required by the PoSH Rules, 2013.
• Annual Reporting: Submitting the annual report as per Section 21 of the PoSH Act to the relevant government authorities.

Navigating the intricacies of PoSH compliance can be challenging. Embar Legal Advocates, a specialist PoSH advisory firm in Mysore, offers comprehensive support to help organizations draft, implement, and maintain compliant PoSH policies and ensure a safe workplace for all.