Confidentiality in PoSH Matters: Challenges and Solutions

The Right to Privacy is fundamental to all. It is crucial to prioritize and protect the privacy of individuals involved in cases related to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [PoSH Act]. Beyond statutory compliance, confidentiality is essential to building trust, promoting empowerment, and fostering a fair and inclusive organizational culture.

The Legal Imperative for Confidentiality in PoSH Cases

Section 16 of the PoSH Act serves as a cornerstone of confidentiality matters related to sexual harassment. It explicitly states that certain information should not be disclosed to the public. This includes details of complaints, the identities and addresses of the aggrieved woman, respondent, and witnesses, information about conciliation and inquiry proceedings, recommendations of the Internal Committee [IC], and actions taken by the employer. This emphasis on confidentiality recognizes the inherently sensitive nature of sexual harassment complaints, prioritizing the psychological safety and privacy of parties and witnesses to a complaint.

Further, Section 17, in conjunction with Rule 12 of the PoSH Rules, penalizes individuals who are entrusted with the task of handling complaints, inquiries, or any recommendations or actions under the PoSH Act, if they are found to violate the mandate of confidentiality.

Common Privacy Issues in PoSH Matters

Despite the legal mandate, upholding the sacrosanctity of the right to privacy and confidentiality in PoSH matters still poses a significant obstacle. The transgressions in privacy often disproportionately burden the aggrieved, most often women, who refuse to come forward with their complaints. They fear social stigma, backlash from family, reputational damage, loss of employment, and further harassment. Let’s explore some common challenges faced in maintaining confidentiality.

◉ Breach of Trust: The primary challenge emerges when trust is breached within the organization. This breach can occur through IC members or involved parties inadvertently disclosing confidential information regarding the complaint details or investigation process. Much too often, parties to the complaint or witnesses are found discussing the matter with acquaintances. These challenges undermine the absolute nature of confidentiality, posing significant harm to the parties involved.

◉ Inadequate Data Privacy: Inadequate measures to safeguard data privacy, leave sensitive information vulnerable to exploitation, jeopardizing privacy and exposing the organization to potential legal repercussions. For example, storing confidential data on unencrypted personal devices or using shared cloud storage platforms without access control, creates a vulnerability. Breach of such data may cause public disclosure of sensitive information, leading to psychological distress for the aggrieved, and reputational damage to the organization. Or consider, for instance, an Internal Committee member having mistakenly sent an email to another with a similar name. This egregious act exemplifies the detrimental consequences of confidentiality breaches, potentially jeopardizing trust and hindering fair proceedings.

◉ Improper Record Keeping: Consider, for instance, an IC member, unaware of proper record keeping, keeping files on the workstation, with easy access to team members. Inadvertent disclosures by untrained IC members pose a significant threat to confidentiality in PoSH investigations. Lacking awareness of the sensitive nature of such data, individuals may inadvertently compromise confidential information.

◉ Ensuring Confidentiality in PoSH Matters

While achieving absolute confidentiality in PoSH cases may pose challenges for various reasons, implementing proactive measures can significantly enhance and reinforce this crucial provision.

◉ Account for Confidentiality in PoSH Policies: Integrating clear and comprehensive confidentiality clauses within the organization’s PoSH policy, outlining expectations and stipulated consequences for breaches, sends a strong message of deterrence and accountability. Consider including the stipulated penalty of INR 5000/- (or more) as per Rule 12 of the PoSH Rules. This emphasizes the seriousness with which confidentiality is regarded within the organization.

◉ Deploy Non-Disclosure Agreements (NDAs): Enforcing confidentiality terms through robust NDAs for parties and witnesses involved in the complaint can prove to be a safeguard against information leaks, consequently underscoring the organization’s unwavering commitment to creating a secure workplace.

◉ Provide Adequate Training: Equipping IC members and relevant personnel with in-depth training on the intricacies of handling sensitive data, confidentiality protocols, and ethical conduct empowers them to navigate complex situations with the utmost discretion and expertise.

◉ Emphasize the Duty of Managers and Team Leads: The onus of maintaining confidentiality extends beyond the Employers and IC Members, to include Managers and Team Leads, who are often the first point of contact for team members who undergo the ordeal of sexual harassment. Managers must be equipped to guide such teammates to the IC while also ensuring that other team members are not made aware of the situation and handle team members who may openly discuss the matter.

◉ Encourage Limited Information Sharing: Information sharing should be limited to a “need-to-know” basis, ensuring only those directly involved in the investigation and with essential duties have access. This would usually be limited to a senior member of the Human Resources Team and the Employer – who is tasked with the role of assisting the IC and actioning the recommendations, thereby protecting the identity of the involved parties. By carefully controlling access to information, the fairness and integrity of the investigation process are safeguarded.

◉ Leverage Technology: ICs must consider the usage of secure cloud storage systems and access control measures to protect confidential information electronically.

Conclusion

Ensuring confidentiality, as envisioned under the PoSH Act, is pivotal to delivering justice to aggrieved women. Awareness initiatives encouraging a speak-up culture should underscore the company’s unwavering commitment to confidentiality and the implementation of anti-retaliatory measures, thereby creating an enabling workplace where every individual feels protected and heard.