In pursuance of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Rules framed there under every employer with more than ten employees must establish an Internal Complaints Committee (ICC). The Act along with the Rules gives out mandated procedure in order to accept and respond to complaints of any kind of sexual harassment from women in a timely and highly confidential manner.

Given the sensitivity involved, conducting an investigation into sexual harassment at work can be onerous. An essential component of the inquiry process is the documentation. The IC investigation may be challenged in court, where all the documentation may be examined for a judicial review.

Documentation Compliance for Sexual Harassment Investigation

It is important that the investigators, primarily IC, know what documents must be recorded from their investigation. Documentation in light of workplace sexual harassment can be split into three segments for clarity.

i. Pre-investigation documents

ii. During Investigation documents

iii. Post-investigation documents

Pre-Investigation Documentation

Pre-investigation documents primarily include receiving of complaint copy by complainant; reply by respondent; in case of conciliation-its settlement or failure document amongst others.

  1. Written Complaint by the complainant (6 copies) along with supporting documents of any proof affiliated with the complaint- details of exact incident, date and time, relevant e-mails, screenshots of messages, call details, recordings, etc.
  2. A list of witnesses provided by the complainant – with their name, contact details, addresses so as to ease the process of communicating to them.
  3. A copy of the notice issued to the respondent.
  4. Reply of the respondent along with supporting documents/evidences of any proof.
  5. A list of witnesses provided by the respondent – with their name, contact details, addresses so as to ease the process of communicating to them.

In case, on request of the complainant, if resolution through conciliation is opted, then such settlement must be recorded. A copy recorded by the IC shall be provided to both the complainant and the respondent.

During Investigation Documentation

During Investigation documents is significant as these records are mandated by law, and preserving them lowers the chance that the Internal Complaints Committee (IC) will be held accountable if the decision is challenged in court.

  1. Confidentiality agreementsigned by the complainant, the respondent, the witnesses and others as required by the IC.
  2. Both complainant's and respondent's statement of their sole meetings
  3. Cross-examination statements of witnesses
  4. Recording of the meeting and signed copy of the transcription of the meetings held.
  1. All of the meetings' minutes in verbatim

Post-investigation Documents

Post-investigation documents are required as it provides closure to the inquiry process. It concludes the recommendations of the IC and also implements the same.

  1. A reasoned report to the employer/district officer- to be signed by all the IC members. It is to be submitted within ten days of completion of inquiry.
  2. Representations made by the parties in opposition to the report.
  3. A document based on implementation of recommendation –warning letter/transfer letter/ termination letter by employer/ apology letter from respondent, etc. It has to be implemented within sixty days of receipt of inquiry.
  4. Meeting notices in their entirety
  5. Any order or directive given to employer, in chronological order.

The Annual Report

Annual reports are used to provide information about the POSH Law's implementation, including details about the sexual harassment complaints that have been submitted, resolved, and are still pending at each organisation.

The POSH Law is tight-lipped about any last date for submission of Annual Reports. POSH at Work (Empanelled by ministry of Women & Child Development, GOI) recommends that in case there are no notifications to the contrary, reports should be submitted by 31st January every year.

Rule 14 states that the following details need to be included in the annual report-

  1. Number of complaints of sexual harassment received in the year
  2. Number of complaints disposed of during the year
  3. Number of cases pending for more than ninety days
  4. Number of workshops or awareness programme against sexual harassment carried out.
  5. Nature of action taken by the employer or District Officer.

Importance of Documentation

  1. By keeping track of what occurred and when, it also provides as proof for the complainant to substantiate their claim or allegations.
  2. Depending on the specifics of each instance, it may also be useful in demonstrating the seriousness or pervasiveness of the harassment.
  3. In today's world, when both the complainant and the respondent are not afraid to appeal a decision, maintaining thorough documentation not only aids IC in substantiating its activities but also avoids IC from getting into trouble with the court.
  4. An investigation may be more challenging if important documents and files related to a sexual harassment claim are not produced. As a result, sufficient paperwork needs to be kept up to date and kept in a manner that is amiable to retrieve.

In one of the most recent cases, Arti Devi v. Jawaharlal University (W.P.(C)-9407/2019), the Delhi High Court ordered that the JNU Registrar submit files pertaining to the petitioner's complaint, the IC's recommendations, and any supporting documentation regarding the processing of those recommendations.

While pointing at the necessity of proper documentation of IC investigations, Advocate and a leading POSH practitioner,Suruchi Kumar, says, "The recent reprimand of JNU Registrar by the Delhi High Court on non-production of relevant documents and files relating to a complaint of sexual harassment filed by a PhD student not only emphasizes the need to maintain proper documentation but also the need to store them in an area where they are easily accessible. In today's time where both complainant and respondent are not afraid to appeal against the decision, maintenance of proper documentation not only helps substantiate the actions of IC but also avoids falling foul of the court. In many past instances, I have seen IC members not maintaining proper records of proceedings and then running helter-skelter transcribing every meeting because they fear action from the authorities."

Penalty for Non-Compliance

Section 25 of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013Act, 2013 expressly stipulates that any officer may be authorised by the government to investigate the sexual harassment inquiry records and the workplace.

A firm that fails to maintain the required records in accordance with the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and rules may be subject to a punishment of up to 50,000 INR, which may be increased to the cancellation of the company's business licence or registration in the event of persistent non-compliance.

Conclusion

The documentation by IC during an inquiry is of paramount necessity. As IC while inquiring into a complaint of workplace sexual harassment, have the same powers as vested in a civil court under the Code of Civil Procedure, 1908i.e., requiring discovery and production of documents when trying a suit- it per se establish the importance of documentation.

Meta Title- Documentation Compliance by Internal Complaints Committee under POSH

Meta Description-Documents required to be maintained from sexual harassment complaint at Workplace complaint. When the IC recommendation is challenged in the court, the importance of documentation maintained during the inquiry process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.