SHLC Blog Choosing The Right External Member For Your Internal Complaints Committee under POSH
Choosing The Right External Member For Your Internal Complaints Committee Under POSH
April 20, 2020
POSH Act; much more than an Internal Complaints Committee
April 28, 2020

Steps To Set Up Your Own Internal Committee

Deciding to constitute an Internal Committee (IC) but don’t know where to start? Here’s a step-by-step guide to get you through this seemingly tedious process. The POSH Act mandates setting up of an IC by every organisation that has more than ten employees. Your organisation’s IC plays a very important role in creating and fostering a safe workplace. It is not just a committee that needs to be set up when a complaint comes or a committee that only looks into sexual harassment at the workplace if a complaint is filed. The IC has a role in prevention, prohibition, and redressal. Setting up on an IC can come with its own set of challenges. This guide will help you understand how to ace at protecting your employees with a strong and stable IC.

Step 1: Choosing the right internal and external member for your IC

It is essential to nominate the correct members to be a part of the IC. The following people need to be a part of your IC.

One Presiding officer [Sec. 4(2)(a)]: Refers to the person who chairs the IC meetings, who needs to be a senior level woman employee from the workplace and in the alternative, other offices or administrative units of the workplace. If none is found per the aforementioned conditions then, one from other offices or administrative units of the workplace of the same employer may be appointed.

A question which we are often asked is what if we don’t have a senior-level women employee? or what if we don’t have a senior-level women employee in all our branch offices? To help you understand this let’s look at the case of Shital Prasad Sharma v. The State of Rajasthan and Others (2018 Lab IC 1859, in which the question was whether “seniority” was a term relative to the level of the employee in every case, which would then mandate the appointment of the Presiding Officer on a case to case basis. The court, in this case had held that the seniority criteria was not relative to the designation of the employee in respect of whom the inquiry was being conducted. Therefore, while appointing the Presiding Officer though consideration of seniority is a requirement, that seniority need not be questioned with each complaint of sexual harassment since that would result in hiring and firing of Presiding Officers, disrespecting their three year tenure.

Two or more Internal members (Sec. 4(2)(b)): They are nominated from amongst the organisation subject to fulfilment of conditions under the POSH Act, these being; employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. These conditions are to ensure an empathetic approach towards the aggrieved who has faced harassment.

External member (Sec 4(2)(c)): This is where some of us face problems; choosing an unbiased, neutral member from outside the organisation, who possesses all the requisite qualifications, lest there is an order of reconstitution. An external member acts as a checks and balances system in the IC, to avoid any biased decisions and further harassment to the aggrieved woman by employees of the organisation in the process of inquiry. S/he provides a safe space to the complainant and allows her to open up before the Committee.

The absence of an external member led to the ordering of re-constitution by the Madras HC in K. Hema Latha v. The State of Tamil Nadu and Others (2018 LLR 447) where the IC of an educational institute consisted solely of members of an administrative department of that institution.

Appointment of an external member can be challenging. You can read more on how to identify and appoint an external member from our guide separately made available by us to this effect titled “Choosing the Right External Member For Your Internal Committee Under POSH”. It will also help you understand the qualities you must look at while choosing one and the errors to avoid; like appointing an unqualified external member, since neutrality isn’t the only requirement.

A word (or two) of caution: At least one-half of the members on board need to be women.

Remember to be careful while choosing. We also advice doing interviews and bias analysis on the nominated members before appointing them.

Step 2: Appointment letters for the members for your IC and the IC Constitution order

Persons selected as Presiding Officer, internal members, and external member all need to be sent their Appointment Letters along with final notification of order of the Constitution of IC within your organisation.

A step often overlooked by organisations is drafting of the IC Constitution Order for the nominated members. You can reach out to us for a draft format of IC Constitution order.

Step 3: Orientation and Capacity Building- Training and Sensitisation of IC Members 

The nitty-gritty of the POSH Act requires an expert to conduct orientation, capacity building of the IC members in addition to the training sessions with the employees of the organisation. These training and capacity building sessions help the IC members understand their roles, duties, and obligations. It aims to train the IC members on how to conduct inquiries, how to maintain documentation, how to write reports when investigating sexual harassment complaints.

Step 4: Get your hands on the starters: An IC Handbook!

It is important to build the capacity of the IC and this can be done with the help of an IC handbook. There are several types of IC handbooks and thus it is important to identify the need of your organisation and  IC and have a customised handbook to assist your IC which they can use as a ready reference in case of any doubts.

Once you have seen through the above steps, you’re almost through. Before parting ways, just remember these things after constituting your IC:

  • Annual Report: Your IC will be required to submit an annual report, listing out the number of complaints received and disposed among others.
  • Term: The term of your IC would be three years, don’t worry once that ends as POSH Act nowhere mandates you to not re-appoint any member, whereas you’re always free to remove them. In case you retain all, just repeat Step 2 and send them Appointment Letters.
  • Quorum: In every IC investigation a minimum quorum of three members is required for the IC meeting to be a valid meeting.
  • Quarterly meetings: It is advised that the IC should do quarterly meetings even in the absence of any sexual harassment complaints.
  • IC’s obligation to the two P’s- It is the IC’s obligation and duty to inculcate a preventive and prohibitive environment against any form of sexual harassment.

AND It’s a wrap! We have successfully gotten your employees an IC!

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