Who is an external member for PoSH?

Workplace sexual harassment results from power dynamics between the accused and the aggrieved. Power dynamics exist at every level of the organization. The same applies to the PoSH Committee constituted under the PoSH Act, 2013. This committee is the Internal Complaints Committee (ICC) or the Internal Committee (IC).

The Internal Committee, known as IC, serves as a vital entity within a workplace tasked with the responsibility of addressing complaints related to sexual harassment. It is mandated to comprise a minimum of four members:

1. A Presiding Officer, who must be a woman holding a senior position within the organization. She is required to be an employee.
2. Two Members selected from the pool of employees. The legislation specifies a preference for individuals dedicated to supporting women’s rights, possessing experience in social advocacy, or possessing legal expertise.
3. One Member chosen from non-governmental organizations or associations dedicated to advancing women’s causes, or an individual well-versed in matters concerning sexual harassment (referred to as the “External Member”).

Power dynamics can often creep into case investigations by the ICC. Thus, it requires the nomination of an external member for PoSH.

Provision for an external member for PoSH

As per Section 4 of the PoSH Act:

• The senior most female employee in an organisation should head the PoSH Committee,
• At least half of the PoSH Committee members should be women, and
• One member should be from an NGO or an association that works for women’s empowerment. They can also be a person who is familiar with issues related to sexual harassment.

As per the PoSH Rules, a “person familiar with issues related to sexual harassment” is an expert in such issues. These include:

• A social worker with at least 5 years of experience in social work. Such social work should create favorable conditions for women’s empowerment. It should address workplace sexual harassment.
• A person who is familiar with labor, service, civil, or criminal law.

The road behind an external member for PoSH

Vishakha Guidelines

From Vishakha Guidelines, it is clear that discrimination can cause workplace sexual harassment. Stereotypes about working women are also a major cause. The Vishakha Guidelines shifted the focus of workplace sexual harassment from a crime-based model to a preventive model. The Vishakha Guidelines aimed to change employees’ mindsets and attitudes against women.

Also read: Here is everything you need to know about the Vishakha Guidelines

Need for an external member for PoSH

The PoSH Committee is a mandatory complaints committee that every employer needs to create in their workplace. An external member ensures an informed process and a just result. An external member serves as a knowledgeable, neutral, and unbiased party, who ensures that the management does not influence the decisions of the PoSH Committee. As stated earlier, while the Act or the Rules do not dive deeper into the role of the external member, the Supreme Court and other courts in India have commented on their role.

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Role of the external member in Internal Complaints Committee

Various courts in India have interpreted the role of the external member in Internal Complaints Committee:

• In Punjab and Sindh Bank vs. X, the Supreme Court observed that the role of the external member in Internal Complaints Committee is to act as an independent person who aids, advises, and assists the Internal Committee,
• In X v. Air France, the Delhi High Court held that the PoSH Committee will be invalid if the qualifications of the external member for PoSH are not aligned with the PoSH Act. Moreover, the Court observed that the external member for PoSH prevents any “undue pressure or influence” from the management of the organization.
• According to the Bombay High Court, in X vs. Rashtrasant Tukdoji Maharaj Nagpur University, the external member is an impartial and independent person. They command the respect of the senior management of a workplace and are also concerned with all the proceedings of the PoSH Committee.

In the above pronouncements, the courts have adequately directed the employers to constitute the PoSH Committee with care and deliberation. They have also given an insight into what functions exactly the external member for PoSH is expected to perform and what is the purpose of their appointment.

Also read: Finding the Right External Member for your Company’s ICC

What to look for while selecting an external member for PoSH?

After looking at the role of the external member in Internal Complaints Committee, it is also important that we consider what an employer should look for while appointing an external member.

• An external member needs to maintain complete neutrality to be an impartial person.
• They should not have any personal interest or knowledge of the case or any connection with it.
• They should not be in conflict with or biased against any party to the case.
• They should not have any association, professional or otherwise, with the organization or company, or workplace.

Therefore, an external member must have complete knowledge of gender bias and gender-based discrimination, organizational hierarchies, and power dynamics.

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Who cannot be an external member?

The suitability of an individual as an external member for an Internal Committe is crucial. There are certain individuals such as a former employee of the company, a family member of senior management, and a lawyer without experience in handling sexual harassment cases who cannot be empanelled as external members. Let’s dive a little deeper into this:

1. Former employee of the company: A former employee of the company may no longer be associated with the organization, but they possess a personal connection to both the company and the team.

2. Family or friends of the senior management: When considering a family member or friend of the senior management as an external member, it is essential to recognize that such an individual may not be suitable due to their susceptibility to influence. Their ability to fulfill their responsibilities as a neutral third party might be compromised.

3. Lawyer with no experience in dealing with PoSH cases: In the selection process for an external member for PoSH, it is crucial to ensure that the chosen individual has relevant experience in dealing with sexual harassment cases and advocating for women’s rights. If a lawyer lacks experience in handling such matters or lacks an understanding of the causes affecting women, they should not be considered eligible for the position.

Also read: External Member of ICC – moving to an Expert Advisor role in Companies

The road ahead for an external member for PoSH

External members need to be valued and their importance in the PoSH Committee should be well understood. It is also important that external members do not lose sight of the purpose for which they have been appointed. They cannot fall short of the idea laid down by the Vishakha Guidelines that requires empowering survivors of workplace sexual harassment. Moreover, the PoSH Act needs to be more specific in its eligibility for the appointment of external members to ensure credibility. A mechanism to regulate the functioning of the external members and guide them should also be created.

FAQs

Who can be an external member?

A person who is familiar with issues related to sexual harassment or is from an NGO or an association that works for women’s empowerment can be an external member for PoSH.

How many members of the ICC should be external?

A PoSH Committee or an ICC should have a minimum of four members out of which one shall be an external member.

Is it necessary for the external member to be present during the proceedings of ICC?

Yes, the external member for PoSH must mandatorily be present for the proceedings of the PoSH Committee. The minimum quorum for all PoSH Committee proceedings is three out of which the Presiding Officer and the external member must be present.

Who are the members of the Internal Complaints Committee?

A PoSH Committee has a minimum of four members. The Committee is headed by a Presiding Officer or a Chairperson who shall be a senior woman employee of the organization. Two other employees of the organization are also members of the PoSH Committee along with an external member. At least half of the POSH Committee members should be women.

What is the role of the external member in Internal Complaints Committee?

The role of an external member in Internal Complaints Committee is to act as an impartial, unbiased, and independent party. They aid, advise, and assist the PoSH Committee and ensure that their decisions are not under the influence of the senior management.

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At Ungender, our team of experts supports you with your end-to-end PoSH compliance. Our in-house and partner network experts act as external members of your PoSH committee. Leave us a message to get started.