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The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was formulated in India with an objective of creating safe workplaces for women. Apart from having provisions which intend to prevent and prohibit sexual harassment at the workplace, POSH Act also lays down the redressal mechanism by way of constitution of Internal Committees (IC) at every organization having 10 or more employees. IC is the only committee that has a right to deal with POSH complaints. An integral part of the IC is the inclusion of POSH external member (EM).
Who is a POSH External Member?
Section 4(2)(c) of the POSH Act states that every IC must have one external member out of the minimum 4 members. The provision reads as follows-
“one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.”
This means that a POSH External Member is an independent individual appointed to the IC from outside the organization
Eligibility Criteria for being an POSH External Member
The POSH Act does not explicitly lay down the eligibility criteria or the educational qualifications required to become an EM in the IC. It broadly states that an POSH External Member on the IC should be an individual either associated with an NGO or other organization committed to the cause of women or someone who is familiar with the issues of sexual harassment.
The EM should be an independent individual from outside the organization who will bring in the expertise required to deal with POSH complaints and act in a just, fair and an unbiased manner to ensure that principles of natural justice are being adhered to.
Importance of having an POSH External Member
Firstly, having an EM in the IC is a compliance requirement as laid down under Section 4(2)(c) of the POSH Act. If an organization constitutes an IC having a minimum of 4 members as required under the law but does not have an EM on that IC, such an IC will not be considered as a valid IC and will be a non-compliance of the law.
Apart from the compliance requirements, having an EM in the IC has other benefits as well such as:
Impartiality and Objectivity:
One of the primary responsibilities of a POSH EM is to maintain impartiality throughout the complaint resolution process. Their role is to provide an unbiased perspective and ensure that neither the complainant nor the respondent faces any prejudice during the inquiry process. External Members provide a level of independence to the IC, reducing the likelihood of bias in decision-making. This independence is crucial in fostering trust among employees and ensuring that the workplace remains free from harassment.
Diverse Perspectives for Comprehensive Resolution:
EMs bring diverse perspectives based on their professional backgrounds and experiences. This diversity is valuable in understanding the unique challenges faced by different individuals and ensuring a more comprehensive and inclusive approach to resolving complaints.
Enhanced Credibility and Trust:
The inclusion of EMs enhances the credibility of the IC. Employees are more likely to trust a process that involves individuals from outside the organization, believing that the inquiry will be conducted with fairness and integrity.
Legal Expertise:
While the POSH Act does not mandate that an EM should be someone from the legal background, EMs are often selected for their legal expertise in employment laws and regulations, including those related to sexual harassment. This ensures that the IC operates in compliance with relevant legislation and follows due process in handling complaints.
Awareness and Sensitivity:
EMs are aware of the nuances of workplace dynamics, especially regarding issues related to harassment and discrimination. Their sensitivity to the experiences of the complainant is crucial in creating a safe space for reporting and addressing concerns and to ensure that the objective of the POSH Act is being met.
Who cannot be an EM in the IC and Reasons for Disqualification?
Section 4(5) of the POSH Act lists down the reasons under which an IC member including an EM can be removed from the IC. They are as follows:
- Breach of confidentiality.
- Conviction for an offence or an ongoing inquiry into an offence under any law.
- Found guilty or a pending disciplinary proceeding.
- Abuse of position.
Some of the other reasons why a person may not be appointed as an EM or may be disqualified if s/he was appointed earlier are:
Employee:
The EM is required to be an independent individual. This is to ensure impartiality and independence in the inquiry process. Hence, an EM should not be employed in the same organization where the complaint of sexual harassment is being addressed. The appointment of posh external member ensures adherence to legal requirements and enriches the committee with diverse expertise.
Expertise and Experience:
While the POSH Act does not specify qualifications, it is generally expected that EMs should have expertise in areas relevant to issues of sexual harassment, such as social work, women’s rights, or legal matters. An individual not having any such experience may not be appointed as an EM.
Conflict of Interest:
An EM should not have any conflict of interest with the organization or any of the parties involved in the complaint. This is to ensure an unbiased and fair inquiry.
The presence of POSH external members in Internal Committees is a crucial step toward creating safer and more inclusive workplaces. Their impartiality, legal expertise, and commitment to confidentiality contribute significantly to the effectiveness of the complaint resolution process. As organizations continue to prioritize the well-being of their employees, the role of EMs in ensuring a harassment-free workplace remains pivotal in shaping a positive and respectful organizational culture. The role of external member in internal complaints committee is pivotal in ensuring unbiased resolution of complaints and adherence to legal procedures.
Choose the Right POSH External Member with POSHequili:
While choosing a right external member, the organisation should consider the posh external member’s qualification and duly inquire regarding the associated posh external member fees.
POSHequili is one of the verticals of Equilibrio Advisory LLP. POSHequili aims to support organizations and institutions striving to build equitable and safe spaces through focused legal remedies and psychosocial support. It primarily engages with the POSH Act to provide services to partner organizations, to ensure efficient compliance with the Law. One such service is that of providing external members in the internal committees. We have very diverse and experienced team members who act as EMs in ICs of various organizations across sectors and industries.
