What is the inquiry procedure under PoSH?

Introduction

Under the Prevention of Sexual Harassment (PoSH) Act, 2013, the inquiry procedure under PoSH that should be followed during a sexual harassment complaint investigation is important for all the parties involved to understand. The parties involved in the process are the complainant, the respondent, and the Internal Complaints Committee (ICC). The ICC is responsible for conducting the investigation and providing redressal to the complainant. 

The investigation process is important for the complainant to seek justice, for the respondent to defend themselves against any false allegations, and for the ICC to ensure that the investigation is conducted in a fair and impartial manner. In this article, we will discuss ten ground rules of an effective and compliant inquiry procedure under PoSH that every ICC should follow.

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Ground rules for an effective inquiry procedure under PoSH

An ICC can effectively conduct an inquiry through certain ground rules such as creating a comfortable environment for the parties, adhering to a time-bound process, balanced and empathetic communication, not letting personal biases influence the proceedings, maintaining the confidentiality of all proceedings, taking interim remedial measures, being consistent, and following up. Let’s explore them in detail below:

1. Create a comfortable environment for the parties

During the investigation process, the 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 under PoSH 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 PoSH 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 that is equivalent to a Civil Court. Therefore, the ICC is required to conduct the inquiry procedure under PoSH in a respectful manner. The procedure should not be influenced by their personal biases or preconceived notions.

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.

Learn the 10 best practices for conducting sexual harassment investigations

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 inquiry procedure under PoSH, whether it is into a minor or major claim, should remain the same. After receiving the complaint, the ICC can follow this checklist –

• Has the complaint been filed within three months (or an extension of an additional three months) of the last incident?
• What the complaint needs to have – the 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 inquiry procedure

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 inquiry procedure. 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.

Find out how you can prepare a PoSH investigation report

9. Be consistent

All complaints, even seemingly minor ones, should be investigated thoroughly. One of the most common mistakes employers could make is to 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 role of the ICC is not to sit passively and wait for the parties to reach an agreement or come and follow up on the update. ICC has to do this role actively and ensure that all parties are apprised of the developments. In specific instances, ICC also needs to proactively educate the parties on presenting their case in the best possible manner. 

Conclusion

In conclusion, an effective inquiry procedure under PoSH is essential to prevent such instances and ensure a safe and comfortable work environment for all stakeholders. The ICC plays a crucial role in investigating and addressing such complaints in a timely and respectful manner. By following the ground rules mentioned above, ICCs can ensure a fair and compliant investigation process that respects the dignity of both the complainant and the respondent. It is important for all parties to understand their rights and responsibilities under the PoSH Act, 2013, and work together to prevent workplace sexual harassment.

How can Ungender help you?

At Ungender, our team of experts facilitates intensive training and capacity-building sessions for your ICC that help them in conducting the inquiry procedure under PoSH effectively. Moreover, additional resources like guides, learning modules, and FAQ sheets on our PoSH compliance SaaS platform, Conduct, support your ICC with consistent learning.

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Author: Pallavi Pareek is the Founder and MD of Ungender. She is an expert in the field of workplace sexual harassment and building diverse and inclusive workplaces. Pallavi is also the leading advisor, trainer, consultant, and external member for some of India’s biggest organizations in these matters. Her approach is grounded in research, and she draws upon the latest insights and best practices to inform her work.