Many SMEs approach us for consultation on how to implement PoSH (prevention of sexual harassment) provisions at workplaces, especially when new investors scrutinise such provisions. The new-age investors understand the need for making the workplace safe and congenial and the PoSH guideline is the first step to inclusion and diversity. Diversity on the other fronts comes later.
Though the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act has been notified, the details on its administration are not clear. We hear about sordid cases of harassment every now and then. These grab the headlines, especially if the people involved are high profile. SMEs can have a major challenge if things blow over and their major ethical customers stop dealing with them due to their poor record on this front. This can also present a risk because while details of how to submit compliance reports are nebulous, the fines prescribed can create an existential issue.
SMEs and start-ups often do not take the Act seriously. When it does happen, there is a tendency to brush it under the carpet. Often, the victim is named and shamed while the Act clearly talks about confidentiality and prevention of any backlash on the complainant. There is hardly any training because most of the owners and leadership teams believe that there are no cases and are pretty confident that there will be no cases in the future as well.
In our discussions with SME employees, we find that they are not aware of what constitutes sexual harassment and the rights that they have under the Act. They also do not understand that progressive companies go beyond the bare minimum of compliance. Understanding that going above and beyond compliance is a cornerstone of creating a respectful workplace is elusive.
Central and state governments do not publicly compile and release data on how many organisations comply with the guidelines, have committees, number of complaints filed and what the outcome of these complaints is. The Centre has provided information only when questions are asked in Parliament on sexual harassment at workplace, but these data are piecemeal and difficult to find. The Parliament was informed in July 2019 that our government does not maintain any centralised data relating to cases of harassment of women at workplaces.
Ideally, the law should be administered in its spirit, but the implementation of the letter of the law is itself a beginning. Here are some of the misconceptions about the implementation of POSH and how they can be addressed:
The Act is woman-centric and can be misused
If you look at the evolution of the law from the Vishaka judgement, it is understandable. However, progressive companies go above the bare minimum and provide protection on a gender-neutral basis. There are safeguards provided to the accused. The Internal Complaints Committee (ICC) has strict timelines and guidelines on how to process a complaint. In case the ICC finds that the complaint is false and malicious, it can recommend action against the complainant. Misuse is akin to misusing any grievance procedure. However, not having it at all is not the solution.
The aggrieved woman has to be an employee in the organisation
The aggrieved woman need not be an employee. The woman can be a visitor, a vendor, a customer, a bystander, an intern or even a job seeker.
The external member has to be from an NGO and all members have to be women
Any person who is familiar with the issue of sexual harassment or a member who is committed to the cause for women can be an external member of ICC.
Having a policy and constituting an ICC translate to full complianceThe first recommendation is that companies stop calling it a sexual harassment policy and rename it as an Anti-Sexual Harassment Policy. In addition to a policy and an ICC, the following aspects are important:
Sexual harassment only includes physical contact
The workplace is not just the physical office space. It could be a zoom call or transport provided by the company. The word ‘workplace’ is defined broadly and includes any place visited by the employee arising out of or during employment.The Supreme Court had once observed: “The implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available a safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.” It is imperative that SMEs take this regulation seriously and implement it in the organisation in its true spirit.