POSH compliance — the committee you are required to have, the member almost nobody appoints, and the settlement the Act forbids

Where the law came from

India had no statute on this subject until 2013. What it had instead were judicial directions.

In Vishaka v. State of Rajasthan, decided on 13 August 1997, the Supreme Court held that in the absence of legislation, guidelines framed by the Court would be binding and enforceable, and would be treated as the law declared under Article 141 of the Constitution until suitable legislation was enacted. Those guidelines set out the employer’s duty to prevent, the definition of sexual harassment, and the requirement of a complaints committee with a third-party member.

For sixteen years, that was the law. The Act of 2013 replaced the guidelines with a statute, kept their essential architecture — including the external member — and added timelines, penalties and reporting obligations that the guidelines did not have.

Compliance has been uneven since. In Aureliano Fernandes v. State of Goa, decided on 12 May 2023, the Supreme Court recorded serious lapses in the enforcement of the Act even a decade after it came into force, and issued directions to the Union, the States and the Union Territories to verify whether the required committees had in fact been constituted and were functioning. If you have been assuming that this is a dormant law that nobody checks, that judgment is the reason to revisit the assumption.

Counting to ten, the way the Act counts

The threshold is ten. The question is ten of what, and the Act answers it broadly.

Almost every limiting assumption an employer makes is contradicted somewhere in that sentence.

• “Whether for remuneration or not” — unpaid interns and volunteers are employees for this purpose.
• “Through an agent, including a contractor” — housekeeping, security and other outsourced staff working at your premises count.
• “With or without the knowledge of the principal employer” — you cannot exclude people by not knowing about them.
• “Probationer, trainee, apprentice” — explicitly included, so the trainee cohort is not a separate category.

The practical consequence is that a great many businesses that believe they are under the threshold are over it. A firm with six people on payroll, two interns, a housekeeper and two security guards at the premises is at eleven. We ask for the actual working population of the workplace, not the salary register, and the answer is frequently a surprise to the client.

Who can complain — and it is not only your staff

Here the Act goes further than almost any employer expects.

“Whether employed or not” is doing an enormous amount of work in that definition. It means the right to complain to your Internal Committee is not confined to your employees. A customer in your showroom, a visitor at your reception, a candidate attending an interview, a vendor’s representative at a meeting, a delivery agent — each can bring a complaint about conduct by someone at your workplace, and your committee has to deal with it.

This has a design consequence for your policy. A policy written only for employees, circulated only to employees, with a complaint route that requires an employee ID, does not meet the Act. The complaint mechanism has to be reachable by somebody who does not work for you — which in practice means the committee’s existence and contact route must be visible to visitors, and that is one of the reasons the statutory display is placed at a conspicuous place rather than on the intranet.

What counts as the workplace

That last clause is the one that matters in practice. It carries the Act out of the office and into the client’s premises, the offsite, the conference, the work trip, the hotel on a work trip, and the company cab. An employer who says “that happened after hours, outside the office” has to answer a different question first: did it arise out of or during the course of employment?

Two modern extensions come up constantly and deserve a straight answer.

• Work messaging groups and email. Conduct on a channel created for work, between colleagues, in connection with work, can fall inside the definition. Treat your work channels as part of the workplace in your policy, because a committee will be asked to.
• Remote and hybrid work. Where the employee works from home for the employer, the home is a place visited arising out of employment in the relevant sense, and conduct on a work video call is not outside the Act because everybody was in their own house.

What the Act defines as sexual harassment

The definition is in two parts and both are operative. Section 2(n) lists the conduct; Section 3(2) lists circumstances which, if they occur in relation to or connected with any act of sexual harassment, may amount to it.

Two words in Section 2(n) carry most of the weight, and a policy that does not explain them will be misapplied by the people who have to use it.

“Unwelcome.” The test is not whether the person doing it intended offence. It is whether the conduct was unwelcome to the person receiving it. Intent is relevant to what the consequence should be; it does not determine whether the conduct falls within the definition.

“By implication.” The Act says the acts may be direct or by implication. An implied suggestion that a promotion depends on a personal relationship is within the definition even though nothing explicit was ever said. That is also why Section 3(2)(iv) — the hostile environment limb — matters: harm can be cumulative rather than contained in one incident.

Constituting the Internal Committee

This is the obligation the Act begins with, and the one most commonly done wrong.

Five details in that provision are routinely missed.

• “By an order in writing.” A committee that exists in people’s understanding but not in a signed order has not been constituted. The order is the compliance document, and it is the one an inspector or a court will ask to see.
• “At a senior level.” The Presiding Officer must be a woman employed at a senior level at that workplace. Where no senior woman employee is available at a particular workplace, the Act provides for nomination from another office or administrative unit of the same employer.
• “Not less than two.” Two employee members is the floor, not the target.
• “At least one-half…shall be women.” Count the whole committee including the external member.
• Every location. Where the employer has offices or units at different places, the committee is constituted at each. One committee at head office does not cover four branches.

Members hold office for a period not exceeding three years from the date of nomination, so the committee is not a one-time task. Reconstitution falls due, people leave, and a committee whose Presiding Officer resigned eighteen months ago is not a committee.

The external member nobody appoints

Of all the defects we find when we review an existing setup, this is the most common: a committee made entirely of employees.

The external member is not optional and not a best practice. The Act requires one member from a non-governmental organisation or association committed to the cause of women, or a person familiar with the issues relating to sexual harassment. The reason is structural: an all-internal committee inquiring into a senior colleague’s conduct has an obvious problem of independence, and the Vishaka guidelines identified it in 1997 for exactly that reason.

Two practical questions follow. Who qualifies? Somebody from a recognised organisation working in this field, or a person with demonstrable familiarity with the subject — typically a practitioner, trainer or social worker with real experience of these inquiries. Keep the basis of the nomination on record. How is the member paid? The rules provide for fees or allowances payable to the external member by the employer, and it is sensible to settle that in writing at the time of appointment rather than when a complaint is pending.

When the Local Committee applies instead

Not every complaint goes to an Internal Committee, and two situations take it elsewhere.

Fewer than ten employees. Where the establishment is below the threshold and therefore has no Internal Committee, the forum is the Local Committee constituted by the District Officer under Section 6. A small employer is not outside the Act; it simply is not required to run an internal mechanism.

A complaint against the employer. This is the more interesting one. Where the complaint is against the employer himself, it goes to the Local Committee rather than to a committee the employer appointed. For a proprietorship or a closely held company, that is the whole mechanism — and it is a good reason for owner-managers to understand this Act rather than delegate it.

The Local Committee route also matters for domestic workers and for workplaces in the unorganised sector, which the Act deliberately brings within its scope through the District Officer.

The complaint, and the three-month clock

Section 9 sets the form and the time limit.

Three points that make a practical difference.

• The clock runs from the last incident in a series, not the first. Sustained conduct is not time-barred because it began a year ago.
• The extension is real but must be reasoned. A committee that extends time should record why, in writing, in its file. A committee that refuses an extension without reasons is creating an appeal point.
• Assistance in writing the complaint is a statutory duty, not a courtesy. Where a woman cannot put it in writing herself, the Presiding Officer or a member is required to help.

Section 9(2) also provides for a complaint where the aggrieved woman is unable to make it on account of her physical or mental incapacity or death, in which case a legal heir or other prescribed person may complain. A policy that assumes the complainant will always be present and able is incomplete.

Conciliation, and the settlement the Act forbids

This section contains the single most widely breached rule in the Act, and it is breached with the best of intentions by employers who think they are being kind.

Read the conditions. Conciliation happens before an inquiry, not instead of an inquiry that has begun. It happens at the request of the aggrieved woman — not at the employer’s suggestion, not at the committee’s initiative, and certainly not under pressure. And money cannot be the basis of it.

What employers commonly do instead is negotiate a payment in exchange for withdrawal, often through HR, often before the committee has been told anything. That is not conciliation under Section 10. It is an arrangement the Act does not recognise, it does not discharge the employer’s obligations, and if it later surfaces it tends to be treated as evidence that the employer suppressed a complaint rather than evidence that it resolved one.

Where a settlement is properly arrived at under Section 10, the committee records it, forwards it to the employer for action, and provides copies to both parties — and no further inquiry is conducted.

The inquiry — ninety days and civil court powers

Where there is no conciliation, or where the woman does not ask for it, the committee inquires.

Those civil court powers are the part employers underuse. A committee is not dependent on whoever volunteers to speak to it; it can summon a person and examine him on oath, and it can require documents to be produced. That is a serious statutory power and it should be exercised properly and recorded properly.

Equally, the inquiry has to be a real inquiry. The principles of natural justice apply: the respondent is entitled to know the allegation against him, to see the material the committee is relying on, to give his version, and to a committee that has not made up its mind in advance. Most successful challenges to POSH findings are procedural rather than substantive — a document never shown, a witness never put, a finding on something that was never alleged.

Interim relief during the inquiry

Section 12 allows the committee, during the pendency of the inquiry and on a written request from the aggrieved woman, to recommend to the employer that he transfer her or the respondent to another workplace, grant her leave for a period of up to three months, or grant such other relief as may be prescribed.

The provision that employers miss is the next one.

In other words, a woman who is given three months’ leave during an inquiry does not have it deducted from her annual leave balance, and does not come back to a zero balance. Payroll needs to know this in advance, because a quiet deduction made by someone following the ordinary leave policy becomes a separate grievance.

Interim relief is also where thoughtful employers distinguish themselves. Transferring the complainant rather than the respondent is lawful on the face of it — the section allows either — but it is frequently experienced as a penalty for complaining, and it is worth asking which transfer the woman is actually requesting before recommending one.

The report, the findings and the consequences

The committee provides its report of findings to the employer within ten days of the completion of the inquiry, and the report is made available to both parties.

Where the allegation is not proved, the committee recommends that no action is required. Where it is proved, the committee recommends action against the respondent in accordance with the service rules, treating sexual harassment as misconduct, and may recommend that the employer deduct from the respondent’s salary such sum as it considers appropriate to be paid to the aggrieved woman.

Section 15 tells the committee what to weigh in determining that sum: the mental trauma, pain, suffering and emotional distress caused; the loss in career opportunity; medical expenses incurred for physical or psychiatric treatment; the income and financial status of the respondent; and the feasibility of payment in a lump sum or in instalments.

The employer is required to act on the recommendations within the period prescribed. This is not a discretion to reconsider the merits: the statutory scheme is that the committee inquires and the employer implements. An employer who declines to act on a proved finding is exposed under Section 26 for failing to act upon the recommendations.

Either party may appeal against the recommendations, or against non-implementation, within ninety days, in accordance with Section 18 and the applicable service rules. Your policy should state the appellate forum, because employees asked to appeal within ninety days need to know where.

False complaints — reading Section 14 whole

Employers ask about this early, and the honest answer requires both halves of the section.

The first proviso is the protection that makes the whole mechanism usable. Most complaints that are not proved are not false; they are complaints that could not be established to the required standard, frequently because this kind of conduct happens without witnesses. If “not proved” automatically meant “punished”, nobody would complain, and the Act would achieve nothing.

The second proviso adds a procedural safeguard: malice is itself established through an inquiry, not announced at the end of the first one. So an employer who wants to act against a complainant for malice is looking at a second proceeding with its own notice and its own hearing.

Section 14(2) applies the same approach to a witness who gives false evidence or produces a forged document.

Confidentiality, and the penalty for breaking it

Section 17 provides for a penalty where a person entrusted with the duty to handle or deal with the complaint, inquiry or recommendations contravenes that provision, in accordance with the service rules or as prescribed.

In an ordinary organisation the risk is not the press. It is the corridor. The people who most often breach confidentiality are well-meaning colleagues, a manager who tells a team why somebody is on leave, or an HR executive who mentions the matter to a peer. Your policy should say, in terms, who may know what, and your committee orientation should cover it. The lawful route for informing the workplace is the aggregate figure in the annual report — not the story.

The employer’s duties under Section 19

Section 4 gets the attention, but Section 19 is where most non-compliance actually sits, because it contains the obligations that continue after the committee is constituted.

Four of those are worth spelling out because they are the ones we most often find undone.

• The display (b). Two things go on the wall: the penal consequences, and the order constituting the committee. Not a poster with a helpline number. Not a page on the intranet. At a conspicuous place in the workplace — which, given who may complain, means where visitors can see it too.
• Workshops and orientation (c). Two distinct obligations: awareness programmes for employees, and orientation for committee members. “At regular intervals” means a recurring calendar item with attendance records, not a one-time induction slide.
• Misconduct under the service rules (i). If your standing orders, HR manual or employment contracts do not list sexual harassment as misconduct, the disciplinary machinery has nothing to attach to when a complaint is proved. This is a drafting job, and it belongs in the HR policy and in the employment agreement, not only in the POSH policy.
• Assistance with criminal proceedings (g). The employer is required to assist a woman who chooses to go to the police. Not to discourage her, and not to make internal resolution a condition of support.

Registers, annual reports and the District Officer

Two reporting obligations run every year, and both are easy to overlook because nobody chases you for them until somebody does.

Section 21 requires the Internal Committee to prepare, in each calendar year, an annual report in the prescribed form and submit it to the employer and to the District Officer. The District Officer forwards a brief report to the State Government.

Section 22 requires the employer to include in the organisation’s annual report the number of cases filed, if any, and their disposal under the Act — and where no annual report is prepared, to intimate that number to the District Officer.

Those two sections are where POSH compliance stops being an HR file and becomes a disclosure. Company secretaries, auditors and acquirers look for it, and an organisation that has run a committee properly for three years but never filed anything has a gap that shows up at the worst time — in a due diligence, a tender qualification, or a listing process.

We set up the register and the annual report format as part of the package, because a compliance system that depends on somebody remembering in January is not a system.

What non-compliance costs

Fifty thousand rupees is not, by itself, a number that changes behaviour in a mid-sized company. The second paragraph is. Cancellation or non-renewal of the licence or registration required to carry on the business is an existential consequence for a regulated business, and it sits in the statute alongside the fine.

In practice, though, the penalty is rarely the largest cost. The larger exposures are a dismissal set aside because the committee was invalidly constituted; a civil claim; a contractual representation about compliance given to a client or an investor that turns out to be untrue; and the internal cost of an incident handled without a mechanism in place.

Men, and what your policy should do about it

This question comes up in every orientation session, and it deserves a straight answer rather than deflection.

The 2013 Act is framed to protect women at the workplace. Its definitions — “aggrieved woman”, and the scheme of the Act as a whole — are gender-specific, and the Internal Committee’s statutory jurisdiction follows those definitions. A complaint by a male employee about harassment at work is therefore not a POSH complaint, and a committee that purports to decide it as one is acting outside its statutory remit.

That is not the same as saying the employer has nothing to do. The right answer, and the one we build into every policy we draft, is a two-part document:

• Part A — the statutory POSH mechanism, tracking the Act exactly: the committee, the definitions, the timelines, the appeal.
• Part B — a parallel workplace anti-harassment procedure available to everybody, run under the organisation’s own disciplinary rules, with its own committee or officer, its own process and its own outcomes.

Keeping them separate matters. A single blended procedure tends to dilute the statutory one, and it creates confusion about which timelines and which powers apply. Two clearly labelled routes, in one document, is what works.

Small companies, startups and remote teams

Three situations we are asked about constantly.

“We are eight people.” Count again, the way Section 2(f) counts, and include contract and outsourced staff at your premises, interns and volunteers. If you are genuinely under ten, you have no obligation to constitute an Internal Committee — but you are not outside the Act. Complaints go to the Local Committee, and a short policy telling your people that, and telling them how to reach it, is inexpensive and sensible. It also means you are ready on the day you hire your tenth person, which for a growing company is usually sooner than expected.

“Our team is fully remote.” The obligation is not suspended by the absence of an office. The committee is constituted in the same way, the display requirement is met at the registered or administrative premises and supplemented by a prominent and permanent notice wherever your people actually work, and awareness programmes run online with attendance recorded. Video conferencing for committee sittings is workable, with the same care about confidentiality that a physical sitting requires.

“We have four branches.” A committee at each administrative unit or office, per the proviso to Section 4(1). This is expensive in effort, and the usual solution is a common external member and a common orientation programme across the branches, with the Presiding Officer and employee members drawn locally.

Where employers go wrong

What we do, and what it costs

The full package starts at ₹7,999 and ordinarily takes 5 – 15 days. It is built to leave you with a working system rather than a document.

Nothing is payable in advance — placing the order is free. On the first call we will tell you whether you are actually over the threshold, what you already have that is usable, and what is missing. If you have an existing setup, we will review it and tell you plainly which parts are compliant rather than starting again for the sake of it.

If more than two of those answers are no, the position is worth fixing now rather than during an incident. Building the mechanism while a complaint is pending is the hardest and least credible way to do it.