FAQ’s On Beyond Compliance – POSH 2.0

A Webinar conducted by KelpHR with Peoplematters on 22nd March 2017 on the topic BEYOND COMPLIANCE – POSH 2.0 . The following is the link of the webinar ….

 

Following are the FAQ’s asked by the participants from various companies during our webinar.
 
Q: What are the evidences the IC team should collect?
Response : The evidence to be collected will be based on the case. It can vary from witness statements, mobile phone records, SMS, Whats App messages exchanged, emails exchanged, CCTV footage that verify the complainant and/or the respondent’s statements.
Q: What are the steps should be followed by the IC team to resolve the case that comes to them?
Response : As the Act 2013 states, the steps involved should begin with meeting the Complainant to understand his/her complaint better. It proceeds with Informing the respondent about the policy, their rights, confidentiality to be maintained, Conciliation (if opted by the complainant), Inquiry Procedure and Submission of Inquiry report with recommendations. Please call or write to us to know more about these steps as these can vary based on the type of harassment case, evidence gathered, etc.
At KelpHR we have drawn up this beautiful process flow map which really gives clarity on each stage.  We work with our clients and put in the number of days each step timelines which could vary from client to client
Q: What happens if there are no witnesses to a claim of sexual harassment?
Response : Many Sexual Harassment cases do fall into this category where there are no witnesses. The IC should look at other forms of evidence like CCTV footage, background checks (any past issues, performance issues), more witnesses which may not have been named, etc to ensure that the claims made are true. Interview-based Investigation is what is most recommended, to understand the complete situation.
Q: What are the next steps a lady should follow in case she is not satisfied with the resolution provided by ICC?
Response : Within 90 days of the final recommendation shared by the employer, the complainant or respondent is allowed to appeal. The case can be re-opened incase new evidence has surfaced at that given point of time.
Q: Too much awareness programs and discussion may emanate false cases. How to prevent that?
Response : To raise a complaint to any authority is a very complicated and strenuous affair. As per our survey in 2016, most of the harassed employees never reported. They think its a taboo! They are scared of consequences like losing their job, frequent interviews with IC, explaining the incident and related events, etc.  Therefore, we have good reason to believe that false cases are not as easy on the Complainant,
However, in our understanding and analysis, we have also noticed that false cases are prevalent in organisations. This is more true at workplaces where there is a low understanding of the law and the leaders do not uphold the spirit of the law. Once complainants are made aware of the law, its objectives and the penalties involved in raising a false complaint, we have seen that there are more genuine issues that are brought to light.
Q: If one is unhappy and not satisfied with out come of case, what can be next step to ensure to get justice
Response : Within 90 days of the final recommendation shared by the employer, the complainant or respondent is allowed to appeal. The case can be re-opened incase new evidence has surfaced at that given point of time.
Q: I would like to ask..what is the biggest cause of worry the women employees resist themselves from reporting these matters inspite of such laws in place? Thanks.
Response : There are many reasons why women have not reported cases of sexual harassment. It ranges from fear of losing their job, being retaliated to, at work and home (especially if its a small town) as well as lack of support and confidence in the existing IC and Management.
Q: Many times the complains made by the female employees which are purely based on perception. whereas the intention on male counterpart is pure.. how to deal with it.
Response : In the Indian context, it is important for most people, irrespective of social class, to be able to distinguish between acceptable and non-acceptable behaviour. It is important to educate employees of these behaviours and help them understand which social behaviours, can be easily misunderstood.
Secondly it is not the intent, but is the perception and impact which determines whether or not an act is sexual harassment. Therefore, employees have to be concerned and inquisitive if their actions are causing another, to feel uncomfortable or harassed.
Q: If there is a POSH complaint is against MD, then will the ICC will investigate, or it will be done by Local Complaints Committee at the district level which is set up by the State government
Response : It is important to note that the IC is an independent committee.
Only for the purpose of Annual Report Filing, do they submit records to the management of the committee.
And so, the IC, being an independent Committee has all rights to investigate any person in the organisation, irrespective of the hierarchy. It is important to note the role of the 3rd party external member. She/He will be able to support the committee in an un-biased manner.
Q: Can mailers be used instead of physical posters for compliance? What should be the contents of these posters?
Response : As per the Act 2013, posters have been mandated as this allows employees to be aware and these guidelines are available to all and become a quick reference point to know various aspects of POSH. The key factor is that visitors / vendors / clients also are made aware of the key policies of the Organisation through these posters that are up in visible areas of the Company premises.
Q: How effective is the online training module for educating the employees on POSH?
Response : Like all online training module, the purpose is to ensure that the learner understands the basics. This is more suitable in an organisation with a large number of employees and/or are located in various parts within India or abroad. We however, do recommend a combination of learning styles so that Managers and learners can interact with trainers, to understand finer aspects since this is a sensitive topic. We further recommend organisations to think creatively and come up with various other methodology for learning. E.g. short videos/films, etc.
Q: What is the role of a legal person in the IC committee? There could be lots of legal intervention if something comes up.
Response: The IC needs to comprise of a 3rd party external member. This person needs to have thorough knowledge of the legalities involved in a case of Sexual Harassment. He/She has an advisory role. They provide the inputs to ensure that the investigation and recommendation made, are based on principles of natural justice.
Q: How much of the law covers men? I get questions that the law is more biased towards women. Is there any statistics around this
Response : As of now, the Act 2013, is specific that it is a guideline for Women at the Workplace.
Having stated that, we would like to share that many companies that KelpHR has consulted for, have opted for a gender neutral Anti-Sexual Harassment Policy. This would mean that within the organisations, irrespective of your gender, you can raise a complaint when you have been shown preferential and /or detrimental treatment in exchange for sexual favours or face a hostile environment.
Q: How to handle when the employee complaints on a visitor? Will this be part of Org PoSH?
Response : Anyvisitor has to comply to your POSH policy. So, as an employer, you can file a case with the  visitors IC or local police authorities if there has been a misconduct with your employee.
The Organisation’s POSH committee needs to also investigate to understand the situation. For the Organisation, this step will indicate how much of awareness is present as well as other measures that can be put in place to ensure safety and awareness of the values of the Organisation, for the outsiders.
Q: So the respondent should be from the company where the report is being made irrespective of where the complainant is from?
Response : Please note that you are responsible for any Sexual Harassment that happens in the following cases :

1. If the complainant is an employee and/or
2. If the respondent is an employee and/or
3. if the harassment happens within the definition of the ‘Workplace’ or ‘Extended workplace’.

Q: Do you have data on how many of them registered complaint?
Response : During our survey, we learnt that out of every 100, 22 employees were harassed. However, only 38% of the harassed, reported the case.
Q: If something happen outside office premises where something happen between male and female employees but at client place so which employer should be held responsible to initiate, enquire, investigate etc.
Response : Any location where the employee was to sent to fulfil his/her job-duties, is called as the workplace or extended workplace. So, the client location is a form of your Organisation’s extended workplace. Therefore, your employees will have to raise a complaint with your IC. However, both Employers are liable to investigate
And your IC will need to investigate and give recommendations and document the case.
Q: How much can the organisation get involved if things happen outside office premises?
Response : Any location where the employee was to sent to fulfil his/her duties, is called as the extended workplace of your organisations. So, the client location is a form of your Organisation’s extended place. The Employee has to complain to her principal employer and the principal employer should share the complainant’s statement with the Client for a thorough investigation. This will then be a joint investigation.
Q: How much importance is given to case if one complaints as an ex employee?
Response: Even an ex-employee’s complaint has to be taken at par with an employee’s complaint since the respondent may still be working with the Organisation. The IC is, therefore, responsible to handle the complaint just as any other.
Q: Is there any specific format for documenting the issues? 2) who all can be a part of committee  ( internal ) ?
Response : Yes – There is a specific format in which the complainant’s statement is to be recorded. This is shared with the IC members during their training on ‘How to handle complaints on Sexual Harassment’. The format includes details of the incident/s, name of witnesses (if any), etc
Q: Can some one else complaint under the act on behalf of aggrieved women ?
Response : Yes. Here are the other employees who can complain in the absence or on behalf of the aggrieved woman.

• Friend
• Officer of NCW
• Special Educator
• Qualified Psychiatrist/Psychologist
• Guardian or authority under whose care the complainant is receiving treatment
• Legal heir

Q: What do u do for a false allegation?
Response : As a practice, no case should be referred to, as a ‘false allegation’ till the full course of investigation has been conducted. Once the investigation has proved that the allegations were ‘false’, these could be dealt with, according to the Organisation’s policy on ‘False Information/Evidence/Fraudulent Activities’, etc.
Q: In case there are scenarios, where a female employee is required to sit back late for few weeks or months, since she is working on some specific project, what has the company to ensure in order to follow compliance?
Response : Ensure that employees are aware and have access to the following :

1. Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
2. This includes :
   • Ensure that there are other employees present on the same work floor, etc
   • Ensure the presence of women security guards
   • Production Floors are well-lit and all areas used by the employees are well-lit, etc
   • A drop is provided to her which has a security guard appointed

3.  Display at any conspicuous place in the workplace , the penal consequences of sexual harassment; and   the order constituting the IC
4. Organise workshops and awareness programs at regular intervals for sensitising the employees with the provisions of the Act
5. Provide assistance to the employee, if he/she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force
Q: If a female is working on third party role like house keeping & hotriculture and SH is done by the company roll employee so in this case to who she can complaint means company where she is working or company through she is working?
Response : It is important to note the definition of the Workplace. If the incident of harassment has occurred at the Complainant’s Workplace, i.e. the Client location in this case, both employers are liable
If the Client’s location is her Workplace, then the client is equally liable for any contract employee’s harassment. The Employee has to to complain to her principal employer and the principal employer should share the complainant’s statement with the Client for a thorough investigation. This will then, be a joint investigation.
Q: What is the exit process in case any of the committee member is moving out?
Response : There are no exit procedures as per the Act 2013. However, some best practices that we would recommend, includes :

1. Identify the person who would replace the IC member and Initiate 1-0-1 training and mentoring, a year prior to the term-end date
2. Ensure that the new IC member is aware of the Internal Policy, Act 2013
3. Ensure that the relieving member shares the year’s record details – No. of cases, status of the case, etc with the new member.