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In the webinar that People Matters and KelpHR conducted on Nov 15th, 2017, a series of Questions was asked by the participants. We have split these question in a 4-part series in this episode of part 2/4 we are responding to all the questions related to IC formation and their roles and responsibilities. We hope you find this insightful and do reach out to us for any further queries at email@example.com
Q: What are the laws that made it mandatory to form IC? What happens when big organisations don’t have IC?
The law that mandates the formation of IC is ‘Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act 2013. Employers are liable to ensure that employees are trained and a fully equipped IC is present, to handle cases. In case of the absence of this committee, the state government can impose a ‘Fine’. On repeat, the Government can cancel the license of the employer.
Q: How is the POSH committee formed?
The PoSH Committee is formed with ‘an order in writing’ by the board members of the Company. The Law mandates that the ‘Presiding Officer’ should be a senior lady employee in the organisation and the4-member committee should consist of 50% of women employees plus a third party to ensure unbiased investigations.
Q: How many and who should be the part of the IC from the organization.
The Law mandates the following:
Q: Is IC committee mandated for small company with less than 10 working women?
No. Forming an IC is mandated for organisations that have more than 10 employees. Organisations with less than 10 employees can approach the Local Committee that operates under the District Collector’s office. In case of a Sexual Harassment complaint, the individual must approach the LC and register a complaint.
Q: Is forming IC limited to Pvt Ltd only? what happens to partnership firm and sole proprietorship firms?
Organisations with more than 10 employees must form an IC, irrespective of how the company is owned. So, both partnership firms and sole proprietorship, based on the number of full-time, part-time, contract – direct or indirect, must have an IC, an Anti-Sexual Policy and other requirements as mandated by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act 2013.
Q: From what we got to know from our sources, ICC is supposed to be neutral and not to take sides evidently. So how could ICC show encouragement without being perceived as less neutral?
IC needs to show empathy to the alleged victim and ensure that they are not swayed towards thecomplaint, unless they have heard the alleged respondent’s response on the matter. Therefore, it is necessary that a minimum of 3 members should meet either party. The members can help one another to ensure that they have a neutral standpoint, while empathy is shown when needed.
Q: Who can decide that IC is not working properly – Owner of company, the victim or any other people?
The owner of the company can decide and nominate a new IC, if he feels that the current IC is not effective. The IC presiding officer too can take this call.
Q: Can IC be re-appointed?
Yes. IC can be dissolved and new members can be appointed by the owner of the company. The law mandates that every 3 years the IC members have to be changed.
Q: Do you suggest that we revamp entire ICC at the end of 3 year?
Yes. New members have to be selected and appointed to the IC on completion of 3 years.
Q: Who would be responsible for making the report and sending to District officer?
The IC presiding officer would be responsible for filing the Annual Returns with the required info from the IC and other related departments.
Q: If in case of stalking, can IC file a police complaint?
Yes, depending on the severity and if there is a non-employee involved. The Employer must ensure that all support is given to employee to file a complaint in case of criminal offense. Even when the employee refuses to file a complaint, the IC, because they are now privy to the information, must take the issue to the respective authorities. If the case is of civil nature, it can be handled internally by the IC or as per the victim’s choice.
Q: Is there any particular format that needs to be used for NDA?
Yes. The NDA must state the confidentiality terms clearly and ensure that the signing members understand the consequences of breaking the agreement.
Q: How do you protect the IC MEMBERS from retaliatory actions of SMT for not breaching confidentiality.
Within the organisation, one can assure the other of protection basis the existing policies. Violation of those, can lead to disciplinary actions that the company can take against a perpetrator. However, outside the bounds of the organisation, the employee can seek assistance from law and order authorities.
Q: Is there any consequence on management if the confidentiality is not maintained by any concerned?
Yes – the law states that the IC can impose a penalty of 5000INR for any breach in confidentiality.
Q: How do we ensure confidentiality, if the incident has happened on the floor and the only source of information would be managers or supervisors or colleagues?
All parties present at the time of the incident can be recorded as the witness. As all witnesses will have to sign a NDA, to ensure that they maintain confidentiality about the details of the incident.
Q: We normally engage a third party or an NGO on the ICC panel. Is it mandatory to have the NGO or a third party involved in the complete enquiry process – or can the ICC make a decision of involving the third party when necessary?
It is mandated by the law to have the 3rd party, so as to conduct a fair and unbiased case hearing with the victim and respondent involved. This will ensure that the IC members are also handling issues without any form of bias.
Q: Do Annual Returns need to be submitted even if there are no cases at all in a calendar year?
Yes. It is mandatory to submit the records as there are other details like employees trained, posters put up, etc. also that needs to be shared, at the time of filing of the returns.
Q: Is the Annual report to be filed end of Financial Year or whether it follows calendar year?
Both. Please refer our blog for details – POSH Annual Report Filing Simplified
Q: We handled a case in the month of Feb. Is Annual Filling mandatory? and where to file?
Yes, please refer our blog – POSH Annual Report Filing Simplified