How to Carry Out Conciliation under the POSH Act

Awareness about POSH practices may be confusing at times. Given the drastic shift to an online work environment, many may find grasping certain POSH terminology and practices difficult. Training and awareness programs that facilitate this transfer of knowledge are an essential way to reduce confusion and complication surrounding processes. In this article, Ungender talks about POSH conciliation. POSH conciliation is when the two parties involved in a case of sexual misconduct within the workplace, voluntarily agree to a settlement.

What is Conciliation under the POSH Act?

Section 10 of the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) talks about the process of conciliation. This refers to the possibility of a settlement between the complainant and the respondent. The internal committee (IC) can initiate a conciliation solely at the request of the complainant. The respondent in this situation cannot request for a conciliation to be initiated. The process of conciliation can be requested before the investigation starts. A conciliation under the POSH Act is completed only if the terms of the settlement are mutually agreed upon by both the complainant and the respondent.

It is pertinent to note that the complainant cannot request monetary gains as part of the settlement under the POSH Act. The settlement can include terms like a public apology in writing, social service hours for the respondent or the respondent going to counselling etc. If the conciliation is carried out successfully and mutual terms of settlement are reached upon by the parties, the Internal Committee (IC) can then close the complaint and will not proceed further with a full-fledged investigation.

Role of the IC in Carrying out POSH Conciliation

Once the request for a conciliation has been made by the complainant, the IC facilitates the process of mediation to arrive at a settlement. The only role of the IC is to be present as a neutral third party. The IC must not influence either of the parties to enter into the conciliation. They must ensure that the entire process is followed in a civilised manner and that decorum is maintained within the meetings. The IC must also ensure that none of the parties are pressuring the other to agree to any terms of settlement that they do not wish to. They must also document all the steps that are taken and record detailed minutes of the meetings that take place. It is important for members of the IC to go through training sessions to fully understand their role when it comes to conciliation.

Has your organization conducted a POSH training session in the past 3 to 6 months? 🤔 Make sure you invest in regular POSH training sessions and refresh employee knowledge. ✅ pic.twitter.com/vv5NM4QaP6

— Ungender (@UngenderTalks) August 17, 2021

Once the conciliation has been agreed upon by both the parties the IC must record the terms of settlement and ensure that the parties have read and agreed to them. The IC must also ensure that the documented terms of conciliation are signed and presented to both the complainant as well as the respondent. Based on the terms of settlement, the IC will give a report with the terms of the settlement and recommendations to employers. These recommendations are binding on the employers and they must follow through with them. The copy of the terms must be given to both parties. An investigation cannot be requested again by the complainant once recommendations have been made on the basis of a conciliation process.

Conclusion

In case the conciliation fails, wherein, a mutual settlement cannot be agreed upon by the parties, the IC must record the same. They must document that a conciliation was initiated and that both the parties were unable to reach mutual terms of settlement, along with detailed minutes of the meetings. Post the failure of the conciliation, the IC must also document that they will now conduct an investigation into the matter.

It is important to make sure that the terms of settlement are not being entered into under any coercion or duress. This rationale is also reflected in Section 10 of the Act. The reason why the respondent cannot request conciliation under Section 10 is to avoid the risk of pressure on the complainant to enter into a settlement without their consent. This makes the role of the IC crucial as the IC must make sure that no confrontation takes part in the meetings. Therefore, a well-trained IC which understands the nuances of the conciliation process is necessary to carry out the process successfully.

Written by: Anuska Roy

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.