Is Your IC Unbiased?

How Do You Ensure Your Organization’s IC is Unbiased?

The Intricacies of the Internal Committee

There has been a rise in the number of POSH-related complaints filed at workplaces since regulations around the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) have been established. In a number of such cases, appeals have even been filed to question the fairness of the decisions/recommendations laid down by the Internal Committee (IC), implying bias or conflict of interest in the final decision.

In this article, let’s take a look at dealing with IC bias and how training can help your organization overcome it.

Understanding Bias & Conflict of Interest

Under the POSH Act, both parties are given an equal opportunity to be heard, keeping in mind principles of Natural Justice. However, there is considerable uncertainty around how to conduct these inquiries due to lack of knowledge and training. An employer’s responsibility is not only to create an Internal Committee (IC) but also provide them with capacity building workshops every year. These workshops include training on how to receive complaints, how to conduct examinations and cross examinations of parties and witnesses and how to facilitate these meetings fairly without personal biases seeping into the inquiry.

It is essential that the  proceedings of the IC are free from bias. In line with the POSH Act 2013, organizations set up Internal Committees (IC) that allow them to step away from conflict of interest, and ensure fair outcome in POSH proceedings. The IC consists of a minimum of four (4) members which includes a chairperson, members from the organization and an external member. Considering 3 out of the 4 mandated IC members are from the organization, they need to undergo POSH training to fully comprehend the intricacies of conducting not just an inquiry, but a fair inquiry where colleagues and coworkers are involved, as a result of which bias may be present owing to interpersonal relationships.

The consequence of bias or unconscious bias can be detrimental to the outcome of a POSH-related inquiry. It amounts to being unfair towards the aggrieved party or the  respondent, and has the potential to not only lead to biased inquiries but also create legal liabilities.

Generally speaking, cognitive biases can affect decision-making since they tend to impair rational judgment. At the workplace, it can be difficult to achieve an inclusive environment free from bias.

Examples of IC bias could be reflected in statements such as:

Why didn’t you come to us sooner, if your complaint is genuine?

As your manager, they have the right to be part of the IC.

As a complainant, you should be feeling scared.

To counter issues associated with bias and impartiality, IC members need to undergo adequate training to ensure that they handle biases effectively and recuse themselves from complaints where they may have a personal interest, conflict of interest, or be biased towards either party.

A Look at Case Laws

Apprehension of Bias

When we talk about IC bias, two landmark judgments are worth discussing. In the case of M. Rajendran v. M. Daisyrani and Ors., the Madras High Court looked into whether the IC itself should be reconstituted to ensure that the proceedings are impartial and fair. Here, there was a reasonable apprehension associated with the inquiry since it was found that most of the IC members were subordinates of the individual against whom the complaint was filed.

The Supreme Court, in Punjab Sind Bank & Ors v. Mrs Durgesh Kuwar, detailed that there was a fundamental defect in the IC constitution. It referred to the POSH Act and stated that the irregularity in constituting the IC arose because of the lack of an independent member on the IC to preside over the matter, which had the potential to lead to institutional bias.

Establishing Bias

In another case, Somaya Gupta v. Jawaharlal Nehru University and Ors., the Delhi High Court ruled that the likelihood of bias needs to be established by the petitioner and that mere apprehension was not enough to challenge the constitution of the IC. Here, the petitioner had challenged the inquiry on the grounds that the IC’s presiding officer was a witness to the incident for which the complaint was filed and therefore should be disqualified from presiding over the inquiry on account of a conflict of interest. However, the court held that reconstitution of the entire IC was not required as the other members did not have a personal interest in the matter.

Overcoming Bias Through Training

Every organization has a POSH policy or internal guidance note that helps its IC members to clearly understand how to avoid situations that have the potential to lead to a conflict of interest. Biases may arise at any stage of the complaint – from before the inquiry begins or when the complaint has been filed, to during the investigation if the parties produce evidence or witnesses provide statements. In many cases, instances of bias can come up subsequently. To inculcate the ability to handle such situations sensitively and optimally, the IC should be well-trained.

IC training conducted by third parties like SHLC helps IC members to fully understand their role and responsibilities. If there is a hint of bias or conflict of interest, it gives them the awareness to disassociate from the case or inquiry. SHLC has helped many organizations undergo specialized training to deal with unconscious bias. We take IC members through modules to understand the meaning of bias, types of bias, possible bias triggers and consequences.

At SHLC, we believe that IC member training isn’t one-time, but a continuous process where case studies and live examples are used in an interactive and engaging way to help IC members take necessary steps to be impartial and bias-free in their judgment.

Book a demo with SHLC today. Reach us at contact@shlc.in or call us on +91-9625392040.