POSH Guide: What NOT To Do When You’re Looking Into A Sexual Harassment Complaint

Written by: Team Ungender

A case of sexual harassment in any organization is a matter of grave concern. It immediately becomes imperative for the organization to provide a safe space for the complainant and see that justice is done in the way it conducts the investigation. So where do companies often go wrong? 

Here are things to avoid while conducting a sexual harassment investigation.

1. Don’t Take Any Interaction With The Complainant Casually

It’s a common mistake that when a Committee (as a whole or as a member) becomes privy to an incident, they decide to first meet the Complainant and understand what happened. Take note, as mentioned, in one of our earlier articles on important judgments – once a complaint has been received by the Committee, the due procedure and guidelines of the formal investigation must be followed.

2. Don’t Rely On Memory – For Anything 

Document everything, every conversation, and interaction. Once a complaint has been raised – formally or informally, written or verbal, every interaction and discussion with regards to it must be documented. There will be instances when it will not be possible to do so. During those times, maintaining internal ‘minutes of meetings’ and sharing them with respective parties is an effective way to approach it. 

3. Don’t Have Individual Member Meetings

Maintain the quorum at all times. Ensure that the Chairperson is part of all the meetings. While it is optional to have the presence of the External Member in these meetings, it is recommended to have them present to ensure that the Committee functions in an unbiased, balanced, neutral manner, in addition to benefitting from the expertise of the External Member. 

4. Don’t Take Confidentiality Lightly

The law has put a lot of emphasis and importance on maintaining the confidentiality of Committee proceedings and has defined a fine of INR 5,000 for violation. However, considering the lack of severity to this penalty, it is advisable to draft stricter provisions on violation of confidentiality and ensure its communication to all parties as and when they get involved in an investigation. 

5. Don’t Forget To Take ‘Minutes of Meetings’ for Internal Discussions Of Committee Members

During an investigation, Committee members usually create summary documents at the end of an investigation. However, it is crucial that every meeting of the Committee members, be it with the Complainant, Respondent, Witness is documented and in between these meetings, all internal meetings of Committee members are also documented. A case file is a collection of all documents pertaining to a specific complaint and its investigation procedure. 

6. Don’t Forget It’s Your Duty To Provide A Fair, Unbiased, And Impartial Investigation Is Towards Both Parties Involved

It is normal for Committee members to form an opinion based on their own biases which is further reflected in their behavior and attitude during the meetings. Do remember that all these meetings and their minutes are to be created and kept as part of the case file. In addition to this, any violation reflected on the principle of natural justice is a ground for appeal. 

7. Don’t Forget It’s Your Duty To Educate The Parties Of Their Rights, Procedure And Timelines During And Post-Investigation

Committees generally expect that individuals must have read the Sexual Harassment Prevention Policy (please provide a hyperlink to our article on drafting a posh policy). However, at the time of receiving the complaint and during the initial meetings, the Committee must educate both parties on this. 

8. Don’t Forget To Gauge The Need Of Interim Measure On Your Own

Another mistake that Committee members make is to expect that a Complainant will seek for an interim measure on their own. Failing to gauge the need not only violates the law, but also extends the trauma for the Complainant, especially if she is in a close proximity or a supervisor-subordinate association with the Respondent. 

9. Don’t Force Conciliation

Conciliation needs to be introduced and proposed to both parties at the appropriate time. However, if a possible conciliation is not happening mutually, then Committee members must not force or nudge the Complainant towards it. Always remember that all conversations of the investigation are being documented as part of its minutes and will always be able to provide substantial ground for appeal someday. 

10. Don’t Claim To Have A Zero-Tolerance Stance Towards Sexual Harassment At Workplace

Committee members with such beliefs also tend to act quickly and take extreme steps without following the due process as provided under the law. The law has given a detailed methodology to accept, investigate and provide redressal on sexual harassment incidents and it is best to follow the procedure in its given timelines.

11. Don’t Take Timelines Lightly

Each violation with respect to the timeline is a ground for appeal. While the larger timeframe provides for up to ninety days of investigation and has also made exemptions for extensions, it is extremely important that each timeline violation is supported with the factors contributing towards it in your Final Inquiry Report. 

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.