PoSH Updates: Accused cannot participate in complainant’s appraisal process

The PoSH Act was enacted with the purpose of preventing, protecting, and providing redressal to women in the workplace against sexual harassment. Complaints of sexual harassment require prompt and effective legal action. In a recent update, Calcutta HC has condemned the fact that the accused was involved in the appraisal report of the complainant. Such involvement of the accused contradicts the purpose of the PoSH Act. 

It is crucial for HR leaders and Internal Committee members of the organizations to know about this decision as they implement PoSH Act and address workplace sexual harassment complaints. In this blog, we will delve into the details of the High Court’s decisions and its consequence. 

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Facts and judgment of the case

In this case, the petitioner/complainant had filed a complaint against the respondent of workplace sexual harassment under the PoSH Act. While the matter is in court, the accused participated in an appraisal report of the complainant which later on was uploaded on the company website for the complainant to see. 

The Calcutta HC observed that the very action of participation of the accused in the appraisal process contradicts the idea of the PoSH Act. Rule 8 of the PoSH Rules, 2013, clearly states that the Internal committee has the power to restrict the respondent from reporting on the work performance of the complainant. The court emphasized the fact that the accused has no power to assess the performance of the complainant and let alone affect her future prospects. 

How does it affect HR leaders and Internal Committee members?

This decision of the court has highlighted the need for effective implementation of the PoSH policies. HR leaders and Internal Committee members need to develop a better understanding of the issue and address it with the utmost caution. Some of the implication of this decision includes proactive actions, fear of retribution and confidentiality, and responsible implementation. Let’s dive into them in a little more detail: 

1. Responsible implementation of the PoSH Act  

HRs and IC members must take responsible and reasonable actions to implement PoSH Act. Strict enforcement and an assertive approach are crucial for the fulfillment of the PoSH’s objectives. HRs and IC members should also be conscious of who is getting involved in the evaluation, promotion, and appraisal processes of the complainant as it might have a negative impact.

Pallavi Pareek, Founder & MD at Ungender, says:

“Upholding the principles of natural justice, it is imperative to prioritize the protection from additional trauma when handling workplace allegations. Allowing the alleged respondent to work alongside the complainant may perpetuate distress and compromise the integrity of the investigation. In critical instances, preventing the respondent from conducting appraisals ensures fairness, safeguards the well-being of the parties involved, and upholds the fundamental principles of natural justice. IC must be cognizant of such elements and ensure protection.”

2. Importance of confidentiality 

Complaints might fear retaliation from the accused leading to underreporting of workplace sexual harassment complaints. To keep the problem of underreporting at a minimum, it is important to maintain confidentiality at all times. It is also mandatory under section 16 of the PoSH Act to protect the confidentiality of the parties concerned.  

3. Upholding the objectives of the PoSH Act

HRs and IC members have the responsibility to uphold the integrity of the PoSH Act. Since PoSH Act, holistically, is about employee safety and well-being, HR leaders are responsible for its effective implementation. Moreover, IC members are the custodians of the law in every organization. They are responsible for the prompt redressal of PoSH complaints to create a safe workplace for all employees.

Also Read: 7 common mistakes companies make in implementing PoSH

What actions can be taken by HR and IC members?

Addressing workplace sexual harassment demands dynamic measures. Some measures include adequate training, involving external expertise and advisories, and a sound support system for the complainants. 

1. Training programs for HRs and IC members

Conducting regular training programs for the HRs and IC member is crucial. These training sessions must emphasize the understanding and sensitivity required to deal with these issues. Training programs must also educate the members about the importance of confidentiality while addressing these complaints. 

2. Involving external experts & advisories

The quorum for addressing the complaint must be impartial and competent. External experts and advisories who have expertise in such matters should be called for, to ensure objectivity and fairness throughout the investigation. 

3. Adequate support and resources for employees

Implement strong support mechanisms like counselling services, helplines, and assistance programs to provide psychological and emotional support to the complainant. These mechanisms should be unrestricted and widely known in the organization.  

Also read: PoSH Updates: Safeguarding complainants & witnesses in PoSH cases

Conclusion

While the HC has criticized the actions of the accused in this case, a huge responsibility also falls on the HRs and IC members. Workplace sexual harassment can hinder self-esteem and bring down the morale of the complainant. Implementing proactive measures and adequate support systems for the victims will inspire trust and confidence in the organization and its culture. 

How can Ungender help you?

At Ungender, our team of experts conducts intensive training sessions for your HR and Internal Committee members. This will equip them with the proper resources and understanding to effectively conduct a PoSH investigation if they receive a workplace sexual harassment complaint. 

We also have a team of in-house external members and advisors inducted with some of India’s leading organizations. They enable your IC and HR members to follow all legal guidelines and best practices while implementing PoSH. Get in touch with us for your PoSH compliance.