What makes an effective Internal Complaints Committee (ICC) under POSH Act 2013

Any organization considering taking up the mandate of employee safety and well being at workplace should look at the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act 2013) for the ready-made framework that this law provides for organization leaders. However, this law aims to provide guidelines and framework for creating a safe workplace, and is not exhaustive. It is therefore, the responsibility of the ICC to take it further and achieve the goal of an inclusive workplace. For instance, though it is mandated that employees must submit written complaints, a company may allow e-mails or other innovative methods of registering a complaint. Similarly, though the requirement of POSH Act 2013 is only to create awareness by putting up posters, companies should ensure that the awareness actually informs people and encourages them to approach the committee- through prominent displays, awareness events, and regular reminders.

This involves constituting an Internal Complaints Committee (ICC) and giving it the funding and resources required to fulfill its responsibilities. In addition, the company evolves its own Code of Conduct for the workplace, which must take into account individual behaviors and diversity. It becomes vital to contextualize these measures by taking into account practices prevailing in the industry.

Despite the fact that ICC members are chosen because of a demonstrated awareness of the issues concerned, they still have all of their own original responsibilities; and often also lack clarity on how to carry out the functions allotted to them. In addition, sexual harassment cases need to be dealt with a level of sensitivity and responsiveness to both sides that may not be immediately obvious and lead to confusion within the committee.

Thus, a need is felt for certain guidelines, or practices that if adopted, could make the ICC more adept at its task to ensure a safe workplace with a healthy complaint redressal mechanism.

Some of the best practices that the ICC can adopt to ensure this are:

Awareness

For employees to approach the ICC with their grievances, there must first be awareness of the existence of the ICC, what matters it deals with, and how it can be approached. Although it is mandated that awareness must be created, in the absence of any precise stipulations as to the manner in which it is to be ensured, ICC and its members can take up a proactive role in ensuring that awareness and sensitization sessions under POSH Act, 2013 is done.

Accessibility

The very first step, much before a complaint is even received, is to ensure that the ICC is accessible to every employee of the workplace. An ICC can only be effective if it receives the complaint in the first place, and it must ensure that it seems approachable and that it is logistically convenient for every employee to come to it. Thus, the ICC must firstly create awareness about the existence and functions of the committee, be it through posters, regular e-mails or sessions conducted at the workplace. The next step is to ensure that there are no barriers, whether locational, economic or linguistic. Special provisions can be made for employees of the service staff or factory workers who may not be literate, for instance by appointing an accessible point of contact who speaks their language and understands the peculiarities of their work environment. Employee helplines may be created to allow quick access and make employees more comfortable. Complaint boxes where written complaints can be submitted could be another way to make the process simpler.

Maintaining confidentiality

For the committee to have the trust of the employees; it must ensure that it maintains a policy of confidentiality that cannot be compromised upon in any situation. Ensuring that the news does not leak to other employees, safeguards the workplace environment from unsupported rumours and speculation leading to disorder; and is in the best interests of both the employees involved. Any breach of confidentiality can compromise the fairness of the inquiry process and cause irreparable harm to the reputation of the parties and the organisation in itself.

Impartiality

It is of vital importance that the ICC be a body that is, and is seen as, wholly fair and impartial. The ICC cannot allow the complainant any unreasonable liberties or assume the guilt of the one who is accused of the sexual harassment, and correspondingly, must give fair hearing to the complainant and ensure that a decision as to whether the case is well founded or not is only delivered after appropriate investigation.

Fairness

 The ICC members must be chosen in accordance with the legal provisions; and that the members chosen should have some relation or demonstrable familiarity with sexual harassment issues or some legal knowledge. As part of its mandate to maintain natural justice during proceedings, ICC need to ensure fairness include giving a hearing to both sides, and giving the person accused of the crime opportunity to know the details of what is alleged against them, as well as the right to reply to any prejudicial statements made against them.

In effect, this means that the accused individual be allowed to access a copy of the complaint, cross-examine witnesses and produce evidence to support their version of the events.

However, these rights that must be ensured to the person against whom the complaint has been leveled must be balanced against the need to allow the complainant a safe environment in which they may air their grievances. The ICC is obligated to ensure that fairness is maintained at every stage of its proceedings. The rights on either side are not absolute but must be ensured in light of the particular facts and circumstances. If these basic principles of fairness are not followed, the directions of the committee can be appealed and the report prepared can be struck down by the appellate authority, defeating the very purpose behind the creation of the structure.

Avoiding biases

It is natural that in their capacity as individuals or employees, the members of the ICC may entertain particular notions of a person’s personality or behavior. However, the ICC simply cannot allow these opinions to play any part in their investigation of a complaint. The ICC cannot have members who are, for instance, predisposed to believing the complainant especially if the person against whom the complaint is leveled is a male employee. Again, ICC members cannot construe a complainant’s general mannerisms to argue that they may have invited the harassment. Such perceptions cannot be allowed to influence the workings of the ICC, and conscious care must be taken to avoid such reasoning.

Maintenance of paperwork

It is vital that the ICC maintain proper documentation for each complaint received and also create a record of every action taken by it as part of the investigation. This secures the committee and the company against any false or mistaken allegations of wrongdoing, and also ensures that the investigation process stays within the legal framework. As the handling of sexual harassment cases by the ICC is extraordinarily time sensitive and investigation must be completed within three months of the receipt of the complaint, maintaining proper documentation also ensures that such questions do not arise later and jeopardize the course of justice.

If these elements are missing in the way the ICC conducts its inquiry, all the resources that have been invested into it, the time, labour and capital- is rendered futile.  In numerous cases, the courts have struck down the directions given by the ICC if these principles aren’t followed. For instance, in judgment of Ashok Kumar vs  University of Delhi (2017), the court had to step in and direct the ICC on the manner of inquiry and insist that it be completed within a three month period; because the respondent had not been given the relief of cross-examination despite the fact that the ICC could not categorically prove the alleged harassment. In the judgment of LS Sibu v Air India (2016), the court reiterated the principle of impartiality, and went on to state that the ICC must strive to achieve the delicate balance between allowing the respondent his rights and maintaining an atmosphere where the complainant can freely air their grievances. Thus, it’s quite evident that if the ICC does not follow these basic principles, the inquiry may be ineffective or even vitiated, and this would mean that the energy expended by it and the investment made would not amount to a resolution of the complaint and the objectives it set out to achieve would be left unattained. The complaint would then clearly cross the boundary of the office, rendering internal dispute resolution impossible, and all the negative externalities that the company as well as the individuals wished to avoid would come into play. Thus, adherence to these principles cannot be emphasized enough.

Author: This post has been submitted by Ishrita Bagchi, as part of her assignment with Ungender Insights. Ishrita Bagchi is currently a student of National Law University, Jodhpur.