Would a consensual relationship with a senior manager, which later turned sour, fall under the scope of the POSH Act, 2013?

Analysis of the Given Scenario Under the POSH Act, 2013
The Protection of Women from Sexual Harassment (POSH) Act, 2013, primarily aims to protect women from sexual harassment at the workplace and provides a mechanism for prevention, redressal, and resolution of complaints related to sexual harassment.
 
Key Provisions to Consider
Definition of Sexual Harassment (Section 2(n)):
Sexual harassment includes one or more of the following unwelcome acts or behaviour:

1. Physical contact and advances.
2. A demand or request for sexual favors.
3. Making sexually colored remarks.
4. Showing pornography.
5. Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

The term "unwelcome" is central to determining whether an act qualifies as sexual harassment. For behaviour to be classified as sexual harassment under the POSH Act:

• Unsolicited or Invited: The behaviour  must  be neither encouraged nor consented to by the recipient.
• Subjective Experience: The perception of the recipient determines whether the act is unwelcome, making it a subjective assessment.
• Reaction of the Recipient: If the recipient feels uncomfortable, humiliated, or threatened, the act can be deemed unwelcome.

Application to the Given Scenario
In the instance where a consensual relationship between a senior manager and a female employee turns sour:
1. Consent as a Key Determinant: If the relationship was consensual at the outset, meaning the woman solicited or willingly accepted the acts or behaviour  of the senior manager, it would not fall under the definition of sexual harassment as outlined in the POSH Act.
2. Later Perceptions: However, if the woman later claims that certain acts or behaviour were non-consensual, unwelcome, or imposed upon her, she has the right to file a complaint under the Act.
3. Role of the Internal Committee (IC): In such cases, the Internal Committee must accept the complaint, investigate the matter thoroughly, and allow both parties to present evidence.
 
Determining Whether the Complaint Falls Under POSH
1. Burden of Proof:

• The complainant (aggrieved woman) must prove that the relationship or specific acts were non-consensual and unwelcome.
• The respondent (senior manager) can counter the claim by providing evidence of mutual consent.

2. Outcome:

• If the IC determines the behaviour was consensual and not unwelcome, it may not qualify as sexual harassment under the POSH Act.
• However, if the complainant proves that certain actions or behaviours were forced, coerced, or non-consensual, they will fall within the scope of the Act.

 
Addressing Company Policies on Consensual Relationships
Even if the relationship is proven to be consensual and thus outside the scope of the POSH Act, such relationships are often discouraged in workplace environments due to potential ethical concerns, conflicts of interest, and power dynamics.
1. Impact of Hierarchical Relationships:

• A consensual relationship between a senior manager and a subordinate can create a perceived or real imbalance of power.
• This could lead to allegations of favouritism,  discrimination, or a hostile work environment, even if the relationship was consensual.

2. Company Policies:

• Organizations often have policies prohibiting or discouraging relationships between employees, particularly where a power imbalance exists.
• Violations of such policies can lead to disciplinary action against both parties, regardless of whether the relationship was consensual.

​3. Recommended Actions by the Employer:

• The organization must communicate its stance on workplace relationships through its Code of Conduct or policies.
• In this case, disciplinary action against both the senior manager and the employee involved in the consensual relationship may be considered to reinforce the company’s policies and maintain workplace integrity.

 
To summarize:

1. A consensual relationship does not inherently fall under the scope of the POSH Act unless specific acts or behaviours are proven to be unwelcome or non-consensual.
2. The Internal Committee must investigate all complaints objectively and  base its findings on the evidence provided by both parties.
3. From a corporate governance perspective, the organization should enforce its policies on workplace relationships and take appropriate action to prevent ethical and operational conflicts.

By balancing legal compliance with organizational values,  the company can  ensure a safe and respectful work environment for all employees.

Disclaimer: This document is for educational purposes only and does not constitute legal advice.

Shekhar Ganagaluru
MSW, LLB, Dip. T&D
HR & IR Specialist | Published Author | Storyteller | Mentor |
Trainer | Community Outreach Coordinator |
​Workplace Safety & Motivation Strategist

Consensual relationship & POSH
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