Importance of External Committee Member, under POSH Act 2013

The Importance of an External Member in the Internal Complaints Committee

Workplace harassment is a critical issue that demands immediate attention and structured mechanisms to ensure a safe and inclusive work environment. In India, the Prevention of Sexual Harassment (POSH) Act, 2013, mandates the constitution of an Internal Complaints Committee (ICC) to address cases of sexual harassment at the workplace. One of the key elements of the ICC is the inclusion of an external member. This article explores the significance of the external member, their role, legal provisions mandating their appointment, the composition of the ICC, the implications of non-compliance, and landmark cases that underscore their importance.

Legal Provisions Mandating the Appointment of an External Member

The Prevention of Sexual Harassment (POSH) Act, 2013, explicitly outlines the requirement for the appointment of an external member in the Internal Complaints Committee (ICC). The relevant legal provisions are:

1.Section 4(1): Every employer is required to constitute an ICC at each office or branch with ten or more employees.

2.Section 4(2)(c): The ICC must include an external member, who should be: - Associated with a non-governmental organization (NGO) or an association committed to the cause of women, or - Familiar with issues relating to sexual harassment.

This provision ensures that the ICC functions impartially and brings in external expertise, free from internal biases or conflicts of interest.

1. Rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013: This rule elaborates on the qualifications of the external member, emphasizing the importance of their experience and commitment to women’s rights or workplace harassment issues.

Composition of the Internal Complaints Committee

The POSH Act prescribes the following composition for the ICC to ensure diverse representation and fairness in handling complaints:

1.Presiding Officer: - A woman employed at a senior level in the workplace. - If a senior woman employee is not available, the Presiding Officer can be from another office or unit of the employer. 2.Members from the Workplace: - At least two members committed to the cause of women or who have experience in social work or legal knowledge. 3.External Member: - As specified under Section 4(2)(c), an external member must be associated with an NGO or have expertise in sexual harassment issues. 4.Gender Representation: - At least half of the ICC members must be women to ensure a balanced and sensitive approach.

The committee’s composition ensures a blend of internal and external perspectives, fostering a fair and transparent grievance redressal mechanism.

Role of the External Member in ICC

The external member plays a pivotal role in ensuring neutrality, expertise, and compliance with the Act. Here’s how:

1.Impartiality and Neutrality

The external member ensures unbiased decision-making by bringing a neutral perspective, free from workplace dynamics, hierarchies, and internal relationships. This is crucial, especially in cases where internal biases could compromise the fairness of the process.

2.Expertise in Handling Complaints

External members are typically well-versed in legal, psychological, or social aspects of workplace harassment. Their expertise ensures that complaints are handled sensitively and professionally while adhering to legal requirements.

3.Strengthening Employee Confidence

The presence of an external member reassures employees that their complaints will be addressed fairly and transparently, encouraging a culture of trust and openness.

4.Guidance and Compliance

External members guide the ICC in adhering to the principles of natural justice and following the due process prescribed by the POSH Act. They also assist in drafting policies and conducting training for committee members.

Relevance of Experience for External Members

The effectiveness of the ICC significantly depends on the qualifications and experience of the external member. To fulfill their role effectively, external members must possess relevant expertise and a strong understanding of workplace harassment issues. Here are the key attributes that an external member should have:

1.Experience in Women’s Rights or Social Work: A background in advocating for women’s rights or experience with organizations that address gender equality and harassment ensures the external member’s familiarity with sensitive issues. 2.Legal and Procedural Knowledge: Familiarity with the POSH Act, workplace harassment laws, and principles of natural justice is essential for guiding the ICC and ensuring compliance. 3.Conflict Resolution Skills: Experience in mediation or conflict resolution helps external members navigate complex interpersonal dynamics and provide impartial recommendations. 4 Training and Sensitization Expertise: External members should also be skilled in conducting awareness and training sessions for ICC members and employees to foster a harassment-free workplace.

The inclusion of an external member with these qualifications enhances the ICC’s ability to address complaints effectively and maintain its credibility.

Implications of Non-Compliance

Non-compliance with the POSH Act, particularly the failure to appoint a qualified external member, can have serious repercussions:

1.Legal Penalties

Organizations that do not constitute a proper ICC or fail to include an external member face penalties under the POSH Act. These include fines up to ₹50,000 for the first offense, with higher penalties for subsequent violations.

2.Invalid Inquiry Proceedings

The absence of an external member can invalidate the ICC’s inquiry process, rendering its findings and recommendations legally unenforceable. This can delay justice for the complainant and expose the organization to liability.

3.Loss of Credibility and Reputation

Non-compliance tarnishes an organization’s reputation, eroding employee trust and deterring talent acquisition.

4.Exposure to Litigation

Failure to adhere to POSH norms may result in lawsuits, compensation claims, and legal battles, further straining the organization’s resources and goodwill.

Landmark Cases Highlighting the Role of External Members

1.Vishaka v. State of Rajasthan (1997)

This case laid the foundation for the POSH Act, emphasizing the need for an independent and unbiased mechanism to address workplace harassment. Although predating the Act, it highlighted the importance of external oversight to ensure justice.

2.Medha Kotwal Lele v. Union of India (2012)

This case reaffirmed the necessity of implementing the Vishaka Guidelines (later formalized as the POSH Act). The Supreme Court stressed the importance of accountability and expertise, roles often fulfilled by external members.

3.Dr. Punita K. Sodhi v. Union of India (2010)

In this case, the Delhi High Court emphasized the importance of impartiality in ICC proceedings. Though the case predated the POSH Act, it underscored the value of independent external members in maintaining credibility.

4.Global Health Private Limited v. Local Complaints Committee, Gurgaon (2021)

In this case, the ICC’s inquiry was invalidated because the external member lacked the requisite experience and knowledge in handling sexual harassment cases. The court highlighted that appointing an unqualified external member defeats the purpose of ensuring fairness and expertise in the process.

Best Practices for Appointing External Members

To ensure the ICC’s effectiveness, organizations should:

• Appoint external members with proven expertise in workplace harassment, women’s rights, or related fields.
• Conduct regular training sessions to keep the external member updated on legal developments.
• Maintain transparency and clear communication regarding the external member’s role and responsibilities.
• Ensure the external member’s active participation in ICC meetings and proceedings.

Conclusion

The inclusion of an external member in the Internal Complaints Committee is not just a statutory requirement but a cornerstone of ensuring justice, transparency, and credibility in handling workplace harassment cases. Their role in fostering a safe and inclusive work environment cannot be overstated. Organizations must prioritize compliance with POSH guidelines to build trust, enhance employee well-being, and mitigate legal risks. By doing so, they contribute to creating workplaces where dignity and respect are upheld for all.