Introduction:

The recent incident in Mukkom, Kozhikode, Kerala, where a 29- year old female hotel employee sustained severe injuries after jumping from a window of building to escape an alleged sexual assault by her employer and colleagues underscores the critical importance of robust mechanism to prevent and address sexual harassment at the workplace.

According to the family, a video recorded just before the incident shows the hotel owner and 2 male staff harassing the woman. The footage, which was automatically recorded while she was playing a mobile game, captures her cries for help and attempts to resist.

While this is appalling, the victim’s family released more evidence in this case – pointing to prior unsafe, inappropriate sexual misconduct at the workplace experienced by the woman prior to the harrowing incident. The family shared digital proof, including screenshots of WhatsApp chats, of the preceding sexually inappropriate behaviour the young employee experienced from the accused.

This case not only highlights the vulnerabilities faced by women at their workplace but also brings into focus the implementation and efficacy of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act 2013. This case raises critical concerns about workplace safety, power dynamics, and failure of system to prevent such crimes

The POSH Act, 2013 was enacted to provide a legal framework for protecting women from sexual harassment at the workplace. It outlines mechanism for prevention, complaint redressal and accountability to ensure a safe working environment.

Does POSH apply in cases of criminal offenses?

POSH itself does not provide for criminal prosecution; it applies alongside criminal law when workplace sexual harassment amounts to a criminal offence. In cases where sexual harassment leads to criminal offenses such as sexual assault, criminal intimidation, or molestation, criminal law applies alongside the POSH Act.

In the present case, where the three accused were arrested for offenses under Section 329(4) (criminal trespass and house trespass), Section 74 (assault or use of criminal force to a woman with the intent to outrage her modesty), and Section 3(5) of the Bhartiya Nyaya Sanhita, 2023, the POSH Act could still apply. If the harassment and assault took place in a workplace setting or if there was any element of workplace-related power dynamics, the woman could potentially pursue a complaint through the Internal Committee or approach the Local Committee under the POSH Act. However, in cases involving serious criminal offenses, such as assault or use of criminal force, the criminal justice system would take precedence in terms of investigation and prosecution.

Effectiveness of POSH Law in Eliminating Sexual Harassment at the Workplace:

The POSH Act plays a critical role in the prevention of workplace sexual harassment. While it does not provide for criminal prosecution, its framework for prevention, redressal, and grievance handling serves as a significant deterrent against sexual harassment in workplaces. The key provisions of the POSH Act include:

Prevention: The law mandates that employers create a safe working environment by taking proactive steps to prevent sexual harassment, including the establishment of internal committees and the formulation of workplace policies.

Redressal: It also provides a mechanism for the victims to file complaints within the organization, which must be handled promptly, fairly, and confidentially.

Awareness: Employers are required to conduct training sessions and workshops for employees to raise awareness about sexual harassment, rights under the law, and available remedies.

Despite the POSH Act’s comprehensive framework, its success in eliminating sexual harassment depends on the proactive steps taken by employers and employees alike to recognize and address inappropriate behaviour early on.

Broader Spectrum of Behaviours Leading to Sexual Harassment:

Sexual harassment does not typically occur suddenly or in isolation. It is often preceded by more subtle, inappropriate behaviours that, if left unchecked, can escalate into serious misconduct. These early warning signs of harassment include:

• Sexist Jokes and Comments: These often serve as an insidious form of undermining a person’s dignity, typically aiming to demean or belittle individuals based on gender.
• Invasive Personal Questions: Probing into an employee’s private life beyond professional boundaries can create an uncomfortable environment and lead to feelings of vulnerability or distress.
• Unwelcome Physical Contact: This could range from unnecessary touching to inappropriate standing too close to someone, crossing boundaries of personal space.
• Persistent Unwanted Attention: Repeated advances, requests for dates, or other types of attention after clear refusals contribute to an uncomfortable and unsafe environment.
• Power Dynamics: When those in authority use their position to exert coercive influence or pressure subordinates, it can create an atmosphere where harassment becomes normalized or ignored.

Application to the Present Case: Inappropriate Messages and Failure to Seek Remedy:

• In the present case, the woman was subjected to repeated inappropriate messages from Devadas, the employer, which would undoubtedly fall under the category of sexual harassment in the workplace. Such behaviour is violation of the POSH Act, which prohibits any unwelcome or inappropriate advances, including verbal and non-verbal conduct.
• It is possible that the survivor was not fully aware of her rights under the law or the available remedies, which is an unfortunate but common issue. The POSH Act provides a grievance redressal mechanism, through which complaints can be made to the Internal Committee (IC) or, in the case of non-compliance or failure to act, the Local Committee. Had the survivor been aware of these rights, she could have filed a formal complaint regarding the inappropriate messages she received from her employer.

Conclusion:

The POSH Act is crucial for addressing workplace sexual harassment, offering both preventive and remedial measures. However, awareness and knowledge about the rights and available avenues for redress are vital for ensuring that employees can make full use of the law. In the present case, the women’s failure to seek remedy under POSH could stem from a lack of awareness, and efforts should be made to ensure that all employees, particularly women, are adequately informed about their rights and the process for redress.

FAQs

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Written by Siddhi Sawant | Reviewed by Sana Hakim