No Evidence in a POSH Case? – A Guide for all Parties

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When it comes to filing a complaint under the POSH Act, many people hesitate if they lack concrete evidence. The situation may involve just two people, and in many cases, no cameras or witnesses are present to support the complaint. In fact, most POSH cases don't come with the kind of evidence we see in movies, like CCTV footage or audio recordings. This can make it challenging for:

• The complainant to prove their case,
• The respondent to defend themselves, and
• The Internal Committee (IC) to reach a fair conclusion.

So, the key question remains: Is it okay to file a POSH complaint without evidence?

The Short Answer: Yes!

Even in the absence of hard evidence, you can and should file a complaint. Under the POSH Act, the probability of an incident occurring can be enough for the IC to take action. Here’s a breakdown of how each party - complainant, respondent, and the IC - can handle cases where evidence is limited.

For the Complainant: What to do if you have no proof

When filing a complaint, providing as much detail as possible will significantly help your case. Here’s how you can approach it:

1. Use the 5W 1H Method: While writing your complaint, structure it with the 5W 1H method (Who, What, Where, When, Why, and How). This will ensure you give the fullest picture of the incident. Refer to this blog on how to write the complaint: https://safespacesinc.in/blog/f/how-to-write-an-effective-posh-complaint ?
2. Think of Possible Evidence: Although direct evidence might be lacking, other forms of evidence could still support your case. Consider:

For the Respondent: How to Respond Effectively

Just as the complainant must document their account thoroughly, so must the respondent. Here are steps to help you prepare:

1. Document in Detail: Use the same 5W 1H framework to document your interaction(s). Detail every aspect to create a complete narrative from your perspective. Refer to this blog on how to write the complaint: https://safespacesinc.in/blog/f/how-to-write-an-effective-posh-complaint ?
2. Present Your Side: POSH investigations are structured to be fair, and you’ll have 10 days to submit a detailed response to the complaint. Your response should include:
3. Prepare for Conversations: Simply denying the allegations may not be enough. Be ready to provide a reasoned response with as much evidence and detail as possible.

For the Internal Committee (IC): Handling Cases Without Proof

This is a tricky situation for the Internal Committee to handle. Before we proceed, an important aspect that we would like to highlight is that IC can make one of the following conclusions for a case:?

1. Case is inconclusive
2. Case is conclusive:?

When investigating a case without solid evidence, the Internal Committee faces a challenging task. However, the POSH Act gives them the power to act even if the incident’s probability is the only factor. Here’s how the IC should approach these cases:

1. Accept the Case: If the complaint qualifies under the POSH Act, even without evidence, it should be accepted and reviewed.
2. Break Down the Complaint: Analyse the complaint in detail, breaking it into smaller parts. Look for potential evidence or witness statements that could either confirm or refute what has been claimed.
3. Identify Gaps: Look for gaps in the narrative, such as inconsistencies or missing details. Investigate whether there’s any independent evidence (like CCTV footage) or witness statements that can fill these gaps.
4. Action Based on Probability: The POSH Act allows ICs to take action based on the probability of an event. It is not necessary to have beyond a reasonable doubt as required in criminal cases.
5. Minimise Bias: Engage in thorough discussions within the IC to minimise biases and ensure fair deliberation on the case.

Remember, the IC's role is not just to assess guilt or innocence but to create and maintain a safe working environment for all employees.

Conclusion: Filing Without Proof Is Still Valid

Sexual harassment often occurs in situations where gathering evidence is difficult. This does not mean, however, that the incident did not happen or that you should not file a complaint. Whether you are a complainant, a respondent, or a member of the Internal Committee, understanding the nuances of these cases can lead to a fair and just resolution, even without physical evidence.

The IC holds primary responsibility towards creating a safe work environment at the workplace and their actions have to be thorough and thought through. If you wish to understand how to select an IC member for the organisation, you can find more information on this blog https://safespacesinc.in/blog/f/how-to-choose-members-for-your-posh-internal-committee ?

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PS: This blog is for informational purposes only and should not be considered legal advice. If you have experienced sexual harassment, please seek professional help or contact the relevant authorities.