Why Internal Committee Members Must Diligently Document POSH Investigations

Written by: Team Ungender

Sexual harassment at the workplace has become a crucial concern virtually for all employers today. However, many employers think that their job is complete after implementing the recommendations of the Internal Complaints Committee (IC) and they inadvertently pay zero or very little attention to documentation and record-keeping of the investigation.

Documentation here refers to the written and retained record of a sexual harassment investigation. These records are legally mandated elements and also reduces the risk of legal liability if the IC order is challenged in an appeal before a court. 

Why Document? 

Documentation is an important component of the inquiry proceedings. The inquiry by IC is subject to challenge before the courts, wherein all the documents may be examined for a judicial review. 

In one of the recent cases, i.e, Arti Devi v. Jawaharlal University (W.P.(C)–9407/2019) the Delhi High Court asked the Registrar of JNU to submit files relating to the complaint of the petitioner, the recommendations of IC and the evidence on the processing of said recommendations.   

While pointing at the necessity of proper documentation of IC investigations, Advocate and a leading POSH practitioner, Suruchi Kumar, says, “The recent reprimand of JNU Registrar by the Delhi High Court on non-production of relevant documents and files relating to a complaint of sexual harassment filed by a PhD student not only emphasizes the need to maintain proper documentation but also the need to store them in an area where they are easily accessible. In today’s time where both complainant and respondent are not afraid to appeal against the decision, maintenance of proper documentation not only helps substantiate the actions of IC but also avoids falling foul of the court. In many past instances, I have seen IC members not maintaining proper records of proceedings and then running helter-skelter transcribing every meeting because they fear action from the authorities.” 

Further, section 25 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 categorically states that the government can authorise any officer to make an inspection of the sexual harassment investigation records and the workplace. 

What To Document? 

 A list of documents that need to be maintained is given below as per the sequence of events. (Note: The order may vary from case to case basis.)

• Copy of the complaint 
• Proofs attached with the complaint 
• List of witnesses provided by the complaint 
• Notice issued by the IC to the respondent 
• Reply of the respondent 
• Proofs attached with the complaint
• List of witnesses provided by the respondent
• Statement of complaint and respondent 
• Statements and cross-examination of witnesses 
•  Inquiry report (Signed by all members)
• Representations submitted by the parties against the report 
• Final enquiry report submitted to the magistrate 
• Confidentiality agreements signed by the complaint, respondent, witnesses, and others as mentioned by the committee
• Minutes of all the meetings in verbatim 
• All the notices of the meetings 
• Any order or directions issued to the management – in a date-wise order. 

Is There A Penalty For Non-Compliance? 

Yes, since this is a labour law compliance, the law prescribes a penalty for non- compliance. An organization not keeping records as mentioned in the POSH Act, 2013 can be penalized with a fine of up to 50,000 INR, which can be extended to cancellation of business license in case of repeated non- compliance.

Important tip: Remember to prepare documentation with the expectation that a third party (internal or external) will review it. Include enough information so others know what happened and what steps were taken to implement the recommendations of IC. Also, timely documentation in IC investigations creates a more reliable account of what happened. As they are more accurate and more likely to be believed than documentation made an extended period of time after the event.

Ungender Insights is the product of our learning from advisory work at Ungender. Ungender Legal Advisory help companies to conduct IC investigation and assist in proper documentation and record-keeping as prescribed under the Act. To seek advisory on IC investigations and record-keeping write to us at contact@ungender.in.