Handling PoSH issues of many kinds
Q: Can we possibly investigate harassment at the workplace on an anonymous complaint?
While the IC cannot act on an anonymous complaint, it need not ignore the contents of the email. If the contents of the email are clear, then IC must act on the same. To read more on this, please read this article published on People Matters: How to ensure confidentiality of sexual harassment complaints
Q: Is financial compensation justified against sexual harassment?
Financial Compensation should not be offered unless in the following situations: Based on the law, companies must resort to the internal policies for redressal mechanisms.
In the absence of the same, for the purpose of determining sums to be paid to the aggrieved employee, the IC needs to consider the following:
- Mental trauma, pain, suffering and emotional distress caused to the aggrieved employee
- The loss in the career opportunity due to the incident of sexual harassment
- Medical expenses incurred by the victim for physical or psychiatric treatment
- The income and financial status of the respondent
- Feasibility of such payment in lump sum or in instalments
This clause must be used in a very cautionary manner.
Q: if an employee voluntarily resigned, taken full and final settlement and then sending emails to IC about the sexual harassment. How can this be handled and course of action for it?
As an ex-employee, if he/she is willing to come in, for a discussion as well as register a written complaint, then IC must inquire, since the incident has occurred while the employees were working for the same organisation.
The Organisation must take a strong stand that all cases that are brought to its notice will be dealt with, with utmost seriousness, even if the employees have left the organisation.
Q: How do you handle instances where a harassment case is reported on the last working day of the accused? Especially when it is reported just 2 hours before the end of business hours.
If it is the respondent’s last day, then the No due clearance and the Full and final settlement can be withheld. The person should be asked to report for all investigations till the inquiry is closed and actions can be taken accordingly and the details should be registered on the employees file.
Q: When can we be assured that the case is closed and the Victim or respondent doesn’t come back after some time that she is not satisfied?
Any party involved in a PoSH case, has a timeline of 90 days, from when the recommendations are given, to appeal. The Appellate authority must hear the case and conclude, after reviewing the facts of the case and any new evidence, if it has surfaced.
Q: Can the respondent challenge the compensation??
Yes – The respondent can appeal on any aspect of the IC’s recommendation and Management’s decision with a justification. The appellate authority will take the justification into account during the appeal.
Q: How can we handle if the issue is in the Management side?
Irrespective of the person involved, the process and procedure to handling an SH case remains the same. However, to ensure that all the data is safe, it is advisable to act fast and call the involved parties quickly and initiate the inquiry process. Companies like Uber (susan fowler case) and Tehelka have faced huge consequences of mishandling the cases when senior management were involved.
Q: 2) If the employee files a FIR, can the perpetrator file defamation case against the employee? How can the employee safeguard herself in such cases?
Since the employee has taken the matter to the Court of Law and his/her lawyer is representing the case, then the lawyer will advise the individual on the various implications of the charges filed. Gathering and maintaining proofs, witness and evidences are very importance for the victims.
Q: 1) Can both the victim and IC register the same case with the Police? If so, there may be duplication of instances, is it legal to do so?
The law and order authorities may register the case under different clauses as the impact on the aggrieved employee and the alleged respondent in a single case may or may not be the same.
if the victim files a police complaint, what is the responsibility of the organization. does the organization need to follow up the case along with the IC?
If the case is that of Sexual Harassment, and if IC receives a written complaint from the victim, then the Organisation needs to ensure that they work with the IC in ensuring that the Inquiry and documentation is completed.
Q: If any incident happens outside the office / factory at the time of office eventand complaint received from third party, Not from Victim, how as HR we can go ahead with this issue?
Since it is an official event happening outside office, it will also be considered as a workplace. This could be a case of Hostile Environment. The IC will take into account the complainant and the issue the specific person faced. IC can then inquire with the 2 individuals who were involved, to understand the situation better.
Therefore, as an HR person, we recommend that you share the complaint and the complainant details, as is, with the IC at your Organisation.
Q: How do you define workplace for field sales representatives? Their work is entirely with the clients on the field. They report through the app. They meet the corporate team only once in 3 months for a review meeting.
Workplace is defined by the law as any place that the employee goes to fulfil his/her work responsibilities. Even if they are on the field, that is their workplace. Any Sexual Harassment faced there, will need to be dealt with and should be reported to the IC.
It is essential that your employees are aware of the POSH law and their rights, they also need to be equipped on how to handle the different instances, and a helpline number can be provided to them to reach out to the IC for any counselling/complaints. And since the party involved may be a client on the field/ outsider, IC may have to work with police to close the case.
Q: Also, when an external client is involved, how do we handle?
IC must understand the issue and involve the IC from the client’s company. The case will be heard and dealt with, jointly by both IC.
Q: How do we decide jurisdiction if the incident happens between 1) two organisations in different geographical areas/ time zones
It is important to understand if the Victimbelongs to an Indian Company – If so, no matter where they travel to, if there is a case of Sexual Harassment, both parties involved will be inquired, as per the Indian Law. If not the law of the land applies.
The IC may need to understand the authorities that handle issues on PoSH and ensure that a dialogue happens and case details are established.
Q: what action to be taken by IC if some person complains from outside about your employee via social Media?
Based on the contents of the complaint, if incident has happened in your workplace, then IC can decide to take it up. If its via social media, then IC can track the complainant and ask the person to come in to speak and register a formal complaint. If that’s possible, then IC must register the case and inquire into it. The mode of complaint be it social media or phone or email does not matter.