POSH Act for small businesses: what employers must do

Start with who is covered, because it is wider than many owners expect. The Act protects women against sexual harassment at the workplace. Its definition of an employee includes people employed on a regular, temporary, ad hoc or daily-wage basis, directly or through a contractor, paid or unpaid, and expressly includes contract workers, probationers, trainees, apprentices and volunteers. So a trainee, an unpaid intern or a contractor's worker on your premises is very likely within it. The workplace is also wider than your office: it includes places an employee visits in the course of work, and transport the employer provides for the journey.

The central requirement for a business with ten or more employees is an Internal Committee. The employer sets it up by a written order. Its presiding officer must be a woman employed at a senior level in the workplace. There must be at least two members from among the employees, preferably people committed to the cause of women or with experience in social work or legal knowledge, and one external member from a non-governmental organisation or association committed to the cause of women, or a person familiar with issues relating to sexual harassment. At least half the members must be women, and members serve for up to three years. If you have offices or units in different places, the Act calls for a committee at each. A common failing is a committee that exists only on paper, with no external member, or with members nobody in the business can name.

If your business has fewer than ten employees, you are not expected to set up an Internal Committee, but your employees are still protected. Each district has a Local Committee, constituted by the District Officer, which receives complaints from establishments that have no Internal Committee because they have fewer than ten workers. The Local Committee also receives complaints where the complaint is against the employer, which matters in a small business where the owner may be the only senior person. Several of the employer's duties, such as providing facilities and information to the committee handling a complaint, refer to the Local Committee as well as the Internal Committee.

The employer's other duties are set out in section 19 of the Act and in the rules. They include providing a safe working environment, including safety from people who come into contact with employees at work; displaying, somewhere conspicuous, the penal consequences of sexual harassment and the order constituting the Internal Committee; organising workshops and awareness programmes at regular intervals for employees, and orientation for committee members; providing the committee with the facilities and information it needs and helping secure the attendance of the people involved; treating sexual harassment as misconduct under the business's service rules; and monitoring that the committee submits its reports on time. The rules also ask employers to formulate and widely disseminate an internal policy on the prohibition, prevention and redressal of sexual harassment.

The Act also sets out how a complaint moves. A woman may make a written complaint, normally within three months of the incident, or of the last incident in a series; the committee may extend this by up to three more months, with reasons recorded in writing, where circumstances prevented her from complaining sooner. Before an inquiry, and only at her request, the committee may try to settle the matter through conciliation, but no monetary settlement can be the basis of it. An inquiry is to be completed within ninety days, and the committee reports its findings within ten days of completing it. The employer must act on the committee's recommendations within sixty days of receiving them. During the inquiry, the committee can recommend interim relief, such as transferring either person or granting the woman leave. The identities and details of the people involved, and the contents of the complaint, are confidential and must not be made public.

There are reporting duties too. The Internal Committee prepares an annual report each calendar year and submits it to the employer and the District Officer, and the employer includes the number of cases filed and their disposal in the organisation's annual report. Failing to constitute an Internal Committee, to act on recommendations, or to meet certain other requirements can lead to a fine of up to fifty thousand rupees, with heavier penalties, potentially including the cancellation of a licence or registration, for repeat offences.

What should an owner do this month? Count your employees properly, using the Act's wide definition. If you are at ten or more, check whether you have a correctly constituted committee and whether your staff know who is on it. Whatever your size, put a written policy in place, display the required information, give everybody a short awareness session, and decide in advance that any complaint will go through the proper process rather than through you personally. Then take this list to a lawyer and ask what else applies to your business.