10 Guiding Pointers For ICC Members During A POSH Investigation

We are living in times when gender-based discrimination and sexual harassment is rampant in institutions. We have witnessed enough instances where companies have lost money and reputation because of sexual harassment at their workplaces.

With this, increasing education and awareness amongst the stakeholders, not only is it important that Employers conduct their rightful duty towards their women stakeholders but also follow the remaining guidelines of the law as they address these instances during an investigation.

These investigations will be conducted by an equivalent power body of a Civil Court and the first point of redressal for instances of workplace sexual harassment.  

Effective investigation of a sexual harassment complaint is a crucial step in achieving the ultimate objective of the prevention of sexual harassment and an effective investigation is comprised of many technicalities and subtleties. In this writeup, we are sharing some of the ground rules of an effective and compliant investigation that every ICC should follow: 

1. Create A Comfortable Environment For The Parties

During the investigation process,  the Internal Complaints Committee (ICC) needs to make the parties comfortable so that they can share the incident in the most accurate manner. The parties should not feel intimidated by the Committee or the inquiry process at any given point.

2. Adhere To A Time-Bound Process.

The ICC should follow the timelines as prescribed under the Act. Any non-compliance will lead to the violation of the Act law and will attract a penalty. Hence, it is crucial to conduct the investigation process in a time-bound manner.

3. Balanced And Empathetic Communication

The ICC is conferred with a huge power which is equivalent to a Civil Court. Therefore, the ICC is required to ask questions to the parties in a respectful manner and it should not be influenced by their personal biases.

Ask questions to parties and witnesses carefully without hurting their emotions or sentiments. Body language must show that the ICC members are vigilant, unbiased, compassionate and respectful. Never be aggressive with the parties and don’t ask for graphic descriptions or ask awkward questions to the parties.

4. Don’t Let Personal Biases Influence The Proceedings

It’s important not to prejudge complaints. In some cases, invalid claims are innocently filed because of a failure to comprehend the law or the applicable legal standards. Until a claim is fully and carefully investigated, the ICC shouldn’t form conclusions about guilt or innocence.

5. Maintain Confidentiality Of All Proceedings

Keep all the details of the case confidential and be discreet about the allegations and the identities of the complainant and accused along with the subject of the investigation.

6. Have All Documents In Place Before An Investigation

The process to handle the complaint whether it be a minor claim or a major incident – the procedure should remain the same. Upon the receipt of the complaint, the ICC can follow this checklist –

• Has the complaint been filed within three months (or extension an additional three months) of the last incident?  
• What the complaint needs to have – name of the parties, date and time of the incident, official relations between the complaint and the accused, description of the incident, details of witnesses, and supporting documents.  
• Whether sexual harassment, as alleged by the complainant, can be contemplated under the POSH Act.   
• The harm suffered by the complainant due to harassment.  

7. Take Interim Remedial Measures During The Investigation

Too often, employers focus only on which remedial measures to take after the investigation is complete. However, depending on the circumstances, you may need to take temporary remedial measures during an investigation. Ask the complainant what outcome they would like to receive in order to find comfort and safety in the work environment again. 

8. Acknowledge The Sensitivity Of The Allegation

Reassure the complainant that the Company is serious about getting to the truth and preventing more occurrences. Assess what went wrong and how the Company can fix it in the long run.

9. Be Consistent

All complaints, even seemingly minor ones, should be investigated thoroughly. One of the most common mistakes employers could make is protect a high-level executive, top producer, or favored employee who has been accused of harassment while implementing more serious discipline against other employees accused of similar conduct.

10. Follow Up 

The job of the ICC is not limited to conducting a sexual harassment investigation and submitting a report on it. The ultimate objective of having an ICC in any organization is to prevent sexual harassment at the workplace.

Therefore, it is very important to follow up with the complainant and accused after the investigation has been completed. Furthermore, the ICC should contemplate what steps can be taken to ensure that such situations do not occur in the future.

Every case that the ICC is working on should be taken as an example in itself and appropriate rules or guidelines should be developed to prevent such situations from reoccurring. 

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.