Workplace Sexual Harassment and Mental Health

‘Extended Workplace’ under POSH Law

One of the most obnoxious issues we now confront is sexual harassment.

More than 9 years have passed since our legislature created the POSH Act in an effort to enhance it and close any gaps in the Vishaka Guidelines. Our courts had emphasised the significance of expanding the definition of "workplace" even before the POSH Act of 2013 was passed. For instance, the Calcutta High Court stated that "a logical interpretation should be given to the phrase 'workplace' so that the objective for which those rules have been created, is not made unworkable" in Ayesha Khatun v. The State of West Bengal & Others (MANU/WB/0071/2012).

‘Workplace’ – How is it defined under Section 2(o) of POSH Law?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) has given a wide definition to the term ‘workplace’ under Section 2(o) of the Act and included the concept of ‘extended workplace’ in its definition. Under the POSH Act, workplace includes:

• Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
• Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
• Hospitals or nursing homes;
• Any sports institute, stadium, sports complex or competition or games venue, 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 by the employer for undertaking such journey;
• A dwelling place or a house

The term "workplace" also refers to the unorganised sector, which is any business with fewer than ten employees that is owned by an individual or a group of self-employed people and that produces or sells goods or offers services of any type. It is clear from the definition of "workplace" above that the idea of a "extended workplace" is also included, which means that it encompasses any location an employee visits as part of their job and any transportation they are given by their company to go there. Since the outset, this has been the topic of judicial interpretations, and courts have applied the doctrine of "notional extension" when interpreting the laws controlling employee compensation.

The most prevalent types of workplace augmentations

The complete and comprehensive list of potential workplace extensions is not something that exists. That list will continue to grow as company procedures, technological advancements, and ever-evolving personal circumstances arise. The most prevalent instances of workplaces today can be seen in a few less visible settings. The POSH Act's Chapter I, Section 2(o), Subsection defines them (v).

• Team-buildings and incentives
• Seminars, conferences and business trips
• Taxi services
• Cyberspace
• Work from home as extended workplace

A Management and HR  guide to selecting Internal Committee members

To provide a welcoming and safe workplace for your team, it is your job as a management leader or HR to create an internal committee in accordance with the Prevention of Sexual Harassment at Workplace (PoSH) Act, 2013. The Internal Committee is in charge of accepting and handling complaints of workplace sexual harassment.

It is essential that you choose members who are knowledgeable, objective, and dedicated to upholding the PoSH Act's values. But managing the PoSH Act can be challenging, particularly when it comes to picking the correct members for your Internal Committee. To help you be careful when creating an internal committee, we are sharing some advice with you.

What to look for in a member of the internal committee?

Your internal committee should be composed of individuals with the necessary training and experience in disciplines like law, psychology, and human resources. Seek for people who have dealt with delicate situations before and who are knowledgeable about the PoSH Act's legal and regulatory obligations.The members should handle concerns in an unbiased and impartial manner. They shouldn't be related to the complainant or respondent on a personal or professional level. This will make it possible to handle all concerns impartially and fairly.

There should be a variety of people on your internal committee in terms of background, gender, and race. 

Members of the Internal Committee should be able to devote enough time to meetings, investigations, and prompt resolution of complaints. 

The Internal Committee will be able to address the interests and concerns of all of your employees thanks to this diversity, which will help to ensure that all complaints are treated sensitively and impartially. Members of your Committee should be skilled communicators who can listen intently and interact with employees who may be difficult to reach.

Don’t of selecting Internal Committee members

• Don’t select Internal Committee members who you’re close to Management 
• The members must be unbiased and gender-neutral, devoid of stereotypes associated with specific gender and sex. 
• One of the most typical errors is choosing team members with similar perspectives or backgrounds. The Committee may find it challenging to meet the needs and concerns of all employees due to this lack of diversity, which also runs the risk of being perceived as biassed or favouring.
• It cannot be chaired or headed by a male member,
• No promoters or perceived owners/top most authority members should be part of your IC, 
• At no point, your IC should have more male members than the female, and
• Your external member should be independent, not a part of your company, and should not have any vested affairs in the organization.
• You need to take a look at the IC formation in your company and reconstitute it if you notice you have made any of the above mistakes.

PoSH Committee’s timeline to complete the inquiry within 90 days under the PoSH Act:

All PoSH Committee members need to be aware of the following significant statement that the Delhi High Court made on January 11, 2023:Even if the Committee does not complete the investigation within the 90-day period specified by Section 11(4) of the PoSH Act, 2013, the investigation will continue, and the deadline "cannot be regarded to be required."Because the PoSH Committee was unable to complete the investigation within 90 days, the petitioner in this case—a chartered accountant—asked that the proceedings be stopped.The Court further noted that the petitioner was unable to demonstrate any harm that the delay had done to him.

The Court further noted that the petitioner was unable to demonstrate any harm that the delay had done to him.

It was also emphasised that in the interest of both the complainant and the respondent, such allegations "deserve to be regarded with a certain amount of seriousness and responsibility" and must be investigated and "brought to their logical conclusion,"

Justice Vikas Mahajan added, "I am prima facie of the view that the complaint of sexual harassment and the inquiry proceeding emanating therefrom cannot be quashed merely for the reasons that the internal complaints committee (ICC) failed to complete the inquiry within the time period given in Section 11(4) of the Sexual Harassment of Women at Workplace Act (Prevention, Prohibition and Redressal)

4. Because the PoSH Committee released the respondents following an investigation under the PoSH Act, the FIR against them was dropped.

A recent FIR brought against two MNC employees that had already been cleared of all allegations by the PoSH Committee was dismissed by the Delhi High Court. An intern had allegedly been sexually harassed by the two workers. The PoSH Committee cleared the responders, nonetheless, after finishing the investigation.

The legal issue that the Court was trying to resolve is a key part of this ruling: Can the FIR against the accused still stand if the PoSH Committee clears them of all charges?

The Court noted that:

The Committee was established as soon as the FIR was filed and the inquiry proceedings were held, 2. The Complainant informed the PoSH Committee shortly after that she did not wish to pursue her complaint, and 3, despite the Complainant failing to appear for cross-examination, the Committee continued the proceedings.

4. The PoSH Act, 2013, provisions were properly followed throughout the inquiry process, and 

5. The committee issued the Final Report based on the merits and after thoroughly analysing the facts.

The Court noted that the FIR contained only generic and not particular accusations against the accused, and that any further action taken as a result of the FIR "would be an abuse of authority and an exercise in futility."

5. The bystander effect and posh Act 2013

The phenomenon known as the "bystander effect" describes how people are less likely to assist a victim when other people are around. The presence of others diffuses responsibility among the witnesses, decreasing the likelihood that any one person will take action, which causes the bystander effect.The phenomena was initially noted in the 1964 murder of Kitty Genovese in New York City, though subsequent research raised questions about how much of her neighbours' claims that they saw the murder or ignored her calls for aid were true.

The bystander effect can also be seen in the workplace, where people may be less prone to intervene or speak up when they witness unethical or inappropriate behaviour when other people are around.

Harassment, discrimination, and other forms of abuse are examples of this. An individual may find it more challenging to voice their concerns while others are around because they may fear reprisals or doubt that their problems will be taken seriously.

Companies can take steps to prevent the bystander effect in the workplace by developing a culture of openness and responsibility, giving training on how to recognise and report inappropriate behaviour, and encouraging employees to speak up when they witness something that is not right.

An active bystander is someone who steps in when wrongdoing is occurring. In businesses, an active bystander would readily intervene in cases of sexual misconduct against minority genders. While a bystander is anyone who witnesses an act of wrongdoing, a bystander who is actively involved in the circumstance takes action that is suitable for them. Also, the active bystander strategy entails intervening during improper situations, calling out inappropriate jokes or remarks that support a toxic workplace culture, and halting or preventing an instance of sexual misconduct from occurring.

Trainings against sexual harassment are a powerful tool for creating a workplace that not only offers remedy but also discourages incidents of wrongdoing. Hence, active bystander training is crucial for organisations to foster employee unity and establish a climate where workers feel confident reporting sexual misbehaviour to their coworkers. An active bystander concentrates on stepping in when the victim cannot defend themselves. Bystanders who take an active role in combating unfavourable workplace conduct can also make a significant difference in the creation of a workplace that is welcoming to underrepresented genders.

Workplace sexual harassment and mental health

By addressing workplace sexual harassment, businesses can help their employees maintain their mental health. An individual's mental health can be significantly impacted by sexual harassment, which can result in symptoms including anxiety, depression, and post-traumatic stress disorder. Also, it may result in a toxic workplace that is bad for everyone's mental health.

Organizations may make the workplace safer and more inclusive for all employees by addressing workplace sexual harassment. This can be done in a number of ways, including by offering training on sexual harassment and how to prevent it, developing clear policies and procedures for reporting and dealing with harassment, and carrying out routine assessments to make sure the workplace is harassment-free.

The phrase "care culture" describes an organisational culture that places a high priority on the welfare of its personnel. In a care culture, the organisation prioritises the emotional and physical well-being of its employees and takes actions to support and promote that well-being.

This can entail opening up mental health resources and services to the public, dealing with workplace harassment and discrimination, and promoting a supportive and inclusive workplace. A care culture can offer multiple benefits for both individuals and the firm, including enhanced productivity, engagement, and retention of top personnel.

Success at both the individual and corporate levels depends on mental health. It is closely correlated with physical health, and those who are mentally well are more likely to be engaged and productive at work. Also, businesses that place a high priority on the mental health of their workers typically have a healthy workplace culture and are more likely to keep their best employees.

Ignoring the financial implications of sexual harassment at work

Sexual harassment at work is a significant issue that has to be addressed. The victims may suffer bodily and emotional harm, lose possibilities for employment, and experience heightened stress and anxiety. Also, it may produce a hostile and poisonous work atmosphere, which may have an effect on everyone's morale, output, and retention.

Regrettably, a lot of companies ignore sexual harassment in the workplace and don't offer a welcoming environment for all workers. This might be as a result of a lack of awareness, understanding, or dedication to stopping and dealing with sexual harassment. It might also be brought on by a society that accepts or condones sexual harassment or by the victims' fear of retaliation.

Neglecting workplace sexual harassment can have major ramifications for firms. It may result in significant legal repercussions that harm the organization's reputation and worth, such as penalties, settlements, and lawsuits.

For example, the ride-hailing company Uber was sued for tolerating a culture of sexual harassment and discrimination, and it agreed to pay a $4.4 million settlement

Leaving workplace sexual harassment unchecked can also result in talent and productivity loss. Comparatively to their white and male counterparts, diverse employees, particularly women and other underrepresented groups, are more likely to encounter sexual harassment and discrimination, are less likely to be promoted, and are more likely to leave their firms. This may lead to a lack of diversity and inclusion in the workforce, which may have an adverse effect on growth, innovation, and collaboration.

Neglecting workplace sexual harassment can also be detrimental to a company's reputation and public image. News of sexual harassment and discrimination can swiftly spread in today's connected and digital world, harming the company's reputation and customer trust. This may result in demonstrations, boycotts, and unfavourable media coverage, all of which can seriously harm an organization's reputation in the present and in the future.

Instances of neglecting workplace sexual harassment in Indian start-ups

Similarly, here are some examples of startups in India that have faced consequences for neglecting workplace sexual harassment:

A former employee accused Zomato and the CEO, Deepinder Goyal, of sexual harassment and retaliation. The employee claimed that Goyal had made inappropriate comments and advances and that the company had ignored her complaints and fired her. 

In 2018, the startup Quikr was accused by a former employee who also accused the CEO, Pranay Chulet, of sexual harassment and discrimination. The employee claimed that Chulet had made unwanted advances and that the company had failed to address her complaints and provide a safe and supportive work environment.

Faasos’ CEO, Jaydeep Barman, was also accused of inappropriate comments and advances that the company had ignored.