Validity of POSH Act at Remote Workspace ?
With the acceptance of remote working due to COVID scenario, many companies have extended their work policies which now enable their employees to work from home or remote working spaces at their convenience. Earlier remote working could have been working from a designated co-working space such as WeWork, 91springboard, AWIFIS and others assigned in a different city or location by the company. At the co-working spaces, employers rent out the work desk so their teams can work from there.
The Prevention of Sexual Harassment (POSH) at workplace Act is applicable to every workplace, establishment, company or organization employing 10 or more employees who are working as full time, part time, interns or consultants irrespective of its location or nature of industry across India. It aims at providing a safe workplace for women and on imposing the employers with the responsibility to ensure a safe working environment.
In terms of POSH act, applying to the members who are working at co-working space but aren't the employers of the co- working space the legality of applying POSH act on the individual becomes a bit tricky as he isn't employable by the workspace. But to ensure that people are aware about the POSH Act policies, many co-working spaces from time to time conduct workshops, events, have information on notice board to intimate them about the POSH Act policies and will also be open to provide CCTV Camera footage and other evidence to the ICC or Police Officials to help with the investigation process. In some cases the workspace will ban the individual from working, intimate the organisation for whom them member was working for, register a complaint on behalf of their employee or the grievance party. (Co-working spaces take steps to handle sexual harassment, Economic Times 2019)
Apart from working at the workspace, sometimes people might also work from their homes, cafes with their colleagues or travel with their colleagues for business trips. The scope of various areas of workspace is defined under Section 2(0) where the POSH act is applicable.
Any Department, Organisation, Establishment, Office which are directly and indirectly owned or funded by a Government company or cooperative society.
Any Private sector organisation, establishment carrying out a commercial, financial activities for production, supply, distribution.
Hospitals or Nursing Homes
Sports Institute, Complex, Stadium whether residential or not used for training, sports or other activities relating thereto.
Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
A dwelling place or House
Hence from the above section, if an employer is working from Home and he receives a message from his co-worker which is sexual in nature he can file a complaint with his organisation under the POSH act.
Sec 2(n) defines Sexual Harassment as any one or more of the following unwelcome acts or behavior:
1) Physical contact and advances
2) a demand or request for sexual favors
3) making sexually colored remarks
4) showing pornography
5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
As part of the POSH Act, It is mandatory for every employer to constitute an Internal Complaints Committee(ICC) at workplace. ICC must deliberate and resolve complaints on sexual harassment at workplace and recommend disciplinary actions, if any to the employer. ICC consists of a senior level women employee who shall be appointed as the presiding officer, 2 employees preferably who have experience in social work, and 1 member from NGO or an external member committed to the cause of women, shall be nominated by the employer. Also one half of the total Members nominated shall be women. During the Inquiry, The ICC is given the same power vested in Civil Court power to summon any person and examine them on oath, require the discovery and production of documents and the Inquiry shall be completed within 90 days. On the completion of Inquiry, the Inquiry report is sent to ICC within 10 days, and when the ICC arrives at conclusion that allegations against the alleged person have not been proved, then it shall recommend the Employer to not take any action.
If the allegations are proven to be true, then, the ICC shall recommend the Employer to take the following action
Take action for sexual harassment as misconduct in accordance with the service rules, or any manner prescribed.
Deduct from the salary or wages such sum, as it may be appropriate to pay the aggrieved woman or to her legal heirs.
If the ICC arrives at a conclusion, that the allegations made are malicious, or any forged or misleading documents are submitted, then the woman shall face the same punishment, that the alleged person would face, has it been a genuine complaint. But provided mere inability to provide adequate proof shall not attract this section.