The POSH Act is applicable exclusively to workplaces in India and covers both organized and unorganized sectors. Workplaces that fall within the purview of the POSH Act broadly include:

• Local, state or central government entities;
• Private sector entities carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities;
• Hospitals or nursing homes;
• Sports institutes, stadiums, sports complexes, or competition or games venues, whether residential or not, used for training or sports-related activities;
• Any place visited by an employee in relation to employment, including transportation provided by the employer for such journey; and
• Dwellings or houses.

The provisions of the POSH Act are mandatory for workplaces covered under the Act: employers must implement PoSH policies, constitute an Internal Complaints Committee (where applicable), conduct awareness and training, and follow the prescribed complaint redressal procedures.

The POSH Act states that no woman shall be subjected to sexual harassment at the workplace. It provides an illustrative (non-exhaustive) list of unwelcome actions and behaviours that may amount to sexual harassment, including:

• Physical contact or advances;
• Demands or requests for sexual favors;
• Making sexually colored remarks;
• Showing pornography; and
• Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

Additionally, the POSH Act recognises that certain actions related to a woman’s employment may also amount to sexual harassment, such as:

• An implied or explicit promise of preferential or deferential treatment in her employment;
• An implied or explicit threat regarding her present or future employment status;
• Interference with her work or creating an intimidating, offensive or hostile work environment for her; and
• Humiliating treatment likely to affect her health or safety.

A complaint of sexual harassment can be made by the victim who has been subjected to an act of sexual harassment at a particular workplace. However, if the victim is unable to file the complaint due to physical or mental incapacity or death, certain persons having knowledge of the harassment, such as a friend or relative of the victim, can file the complaint on their behalf.

Under the POSH Act, an ICC shall comprise of:

• one presiding member who shall be a woman employed at a senior level at the workplace;
• At least 2 (two) members from amongst the employees. It is preferable to have such employees who are committed to the cause of women or those who have had experience in social work or have some legal knowledge; and
• One member from amongst non-governmental organizations or associations committed to the cause of women or a person who is familiar with the issues relating to sexual harassment. However, one half of the members of the ICC shall be women. The tenure of each member of the ICC cannot exceed 3 (three) years.

Under the POSH Act, an employee is a person who is employed directly or through an agent at a workplace on a regular, temporary, ad hoc, or daily wage basis. Such an employee may or may not be remunerated for his / her / their services.

The POSH Act states that an employee includes a co-worker, contract worker, probationer, trainee, apprentice or called by any other name.

Under the POSH Act, an employer means:

• Head of a department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the Government or the local authority as the case may be;
• Any person who is responsible for the management, supervision, and control of the workforce; or
• Any person who is discharging contractual obligations with respect to his / her / their employees; and
• In relation to dwelling place or a house, a person or a household who benefits from the employment of a domestic person irrespective of the number, period or type of such worker(s) employed, or the nature of employment.

Under the POSH Act, an employer plays an important role in maintaining a safe workplace for the employees. The employer is required to take the following steps:

• Provide a safe working environment for persons directly or indirectly connected to the workplace;
• Display the penal consequences of sexual harassment at a clearly visible place;
• Display the order constituting the ICC;
• Organize workshops, awareness and orientation programs for sensitizing employees and members of ICC with the POSH Act;
• Provide requisite facilities to the ICC or the local committee to deal with and conduct inquiry of sexual harassment complaints;
• Assist in securing the attendance of accused persons and witnesses before the ICC or the local committee;
• Make information available to the ICC or the Local Committee as may be required;
• Provide assistance to the complainant if she chooses to proceed under the Indian Penal Code, 1860 or any other law in force;
• Initiate action for misinformation; and
• Monitor timely submission of reports by the ICC.

The broad steps involved in resolution of a complaint are:

Upon receipt of a complaint of sexual harassment, the ICC will take steps to conduct an inquiry. The ICC will serve a copy of the complaint upon the person against whom the complaint has been made (Respondent). The Respondent will be provided an opportunity to file his / her / their reply within 10 (ten) days of receipt of the complaint.

If parties fail to present themselves for three (3) consecutive hearings without any reason, the ICC will pass an order and terminate the proceedings. If both parties appear for the hearing, the ICC will hear both sides and pass an order on merits within 90 (ninety) days.

It is pertinent to note that, while making an inquiry in a complaint of sexual harassment, at least three (3) members of the ICC must be present.

A complaint may be made by the Victim within 3 (three) months from the day of the incident. The time limit can be extended by the ICC by another 3 (three) months upon satisfaction of circumstances that prevented the Victim from filing the complaint.

During the pendency of an inquiry into a complaint of sexual harassment, certain actions can be taken by the ICC or the local committee on a written request made by an aggrieved complainant. The ICC or the local committee may provide recommendations to the employer to:

• Transfer either the Victim or the Respondent to another workplace; or
• Grant leave to the Victim for a period of up to 3 (three) months; or
• Restrain the Respondent from reporting on the performance of work or writing confidential reports and assign the same person to another office; or
• Any other recommendation as the committee may deem fit.

Under the PoSH Act, an employer may be punished with a fine of up to INR 50,000 (Indian Rupees Fifty Thousand) in the following cases:

• Failure to constitute an Internal Complaints Committee (ICC);
• Failure to conduct an inquiry and submit the inquiry report as required;
• Failure to take action against providing misleading information on the complaint or inquiry; and
• Failure to include information relating to sexual harassment cases in the organization's annual report.

Further, if the employer is found guilty of the above contraventions for a second time, the employer may be liable to:

• Pay twice the punishment (fine) that was imposed upon conviction the first time; and
• Have the employer's license and/or registration cancelled or withdrawn by the appropriate authority.

Yes, an appeal can be filed against the decision of the ICC before a service court or a tribunal as per the service rules applicable to such person. If no service rules are applicable to the aggrieved person, then the appeal may be preferred before the appellate tribunal as notified under the Industrial Employment (Standing Orders) Act, 1946. However, such an appeal shall be filed within 90 (ninety) days after the District Officer receives the recommendations of the ICC.

A District Officer may be a District Magistrate or an Additional District Magistrate or the Collector or the Deputy Collector as notified by the appropriate government.

A District Officer may be a District Magistrate or an Additional District Magistrate or the Collector or the Deputy Collector as notified by the appropriate government.

Yes. The ICC is required to prepare an annual report under the PoSH Act and submit the same to the concerned District Officer. The report shall contain the following details:

• Number of cases filed;
• Number of complaints of sexual harassment received in a year;
• Number of complaints disposed in a year;
• Number of cases pending for more than 90 (ninety) days;
• Number of workshops or awareness programs conducted against sexual harassment; and
• Nature of action taken by the employer.

Yes. If the ICC concludes that a complaint is false and malicious, actions may be taken against the complainant as per the applicable service rules. If no service rules apply, measures that may be recommended include:

• Asking the complainant to tender a written apology;
• Issuing a warning;
• Reprimanding or censuring the complainant;
• Withholding promotion;
• Withholding increment or pay rise;
• Termination of services; and
• Directing the complainant to undergo counselling or carry out community service.