Although POSH inquiries are not criminal proceedings, some of the foundational concepts used in assessing liability can help Internal Committees approach complaints in a structured and objective manner.
The four elements discussed below provide a useful framework for understanding the facts, evaluating evidence, and assessing whether the alleged conduct may constitute sexual harassment under the POSH Act. When applying this framework, Internal Committees should remain guided by the principles of natural justice, fairness, and the standard of proof applicable to POSH inquiries, namely, the preponderance of probabilities rather than proof beyond reasonable doubt.
1. Perpetrator
Definition: The individual alleged to have committed the act.
What the Internal Committee needs to keep in mind
When examining a complaint, the Internal Committee should first identify who the respondent is and understand their relationship with the aggrieved woman. It is important to consider whether there was a power imbalance between the parties—for example, if the respondent was a reporting manager, senior leader, colleague, client, vendor, consultant, or any other person connected to the workplace.
The Committee should also assess whether the respondent’s position, authority, influence, or seniority may have affected either the alleged conduct or the complainant’s ability to respond, object, or report the incident.
At the same time, the Committee should remain objective and avoid making assumptions based solely on a person’s designation, length of service, performance record, or reputation within the organisation.
Questions to Consider
• Who is alleged to have committed the conduct?
• What was their role and position relative to the complainant?
• Did they have any supervisory or decision-making authority over the complainant?
• Were there previous complaints or concerns involving similar conduct?
POSH Lens: Focus on the conduct and evidence, not the individual’s status or organizational importance.
2. Mens Rea (Guilty Mind / Intent)
Definition: The mental state or intention behind the conduct.
What the Internal Committee needs to keep in mind
In POSH inquiries, it is often difficult to determine exactly what a person intended, as there is rarely direct evidence of their thoughts or motives. However, the Internal Committee can understand intent by looking at the person’s actions, the surrounding circumstances, and their communications.
The Committee should consider:
• Was the behaviour intentional or could it have been accidental?
• Did the respondent know, or should they reasonably have understood, that the behaviour was unwelcome?
• Did the conduct continue even after the complainant expressed discomfort, objected, or asked the respondent to stop?
• Is there evidence of similar behaviour occurring more than once or with others?
Looking at these factors can help the Committee understand whether the conduct was a one-time misunderstanding or part of a deliberate pattern of behaviour.
Questions to Consider
• Does the available evidence suggest that the conduct was intentional, careless, or a one-time mistake?
• Would a reasonable person have understood that the behaviour could make someone uncomfortable?
• Did the respondent continue the behaviour after the complainant showed discomfort or indicated that it was unwelcome?
• Do emails, messages, meeting interactions, or witness statements suggest that the conduct was deliberate rather than accidental?
This version encourages the Internal Committee to focus on facts and context rather than legal terminology.
Important POSH Perspective
A finding of sexual harassment does not always require proof of malicious intent. The impact on the recipient and whether the conduct was unwelcome are often more relevant than the respondent’s claimed intentions.
Example:
A respondent may say, “I was only joking.” The inquiry must assess whether the conduct was unwelcome and created discomfort, regardless of the stated intention.
3. Actus Reus (Guilty Act)
Definition: The actual conduct or behaviour complained of.
What the Internal Committee needs to keep in mind
This is often the most important part of a POSH inquiry because it focuses on the facts of the case and the evidence available to support them.
The Internal Committee should seek to clearly understand:
• What exactly is alleged to have happened?
• When and where did the incident(s) take place?
• Was it a one-time occurrence or did it happen repeatedly?
• What evidence is available to support or challenge the allegation, such as emails, messages, documents, CCTV footage, or witness statements?
• Whether the alleged behaviour involved spoken comments, inappropriate jokes, messages or emails, physical contact, requests for personal meetings, sharing explicit material, non- verbal actions such as staring or gestures, or retaliatory treatment following the complainant’s rejection of the behaviour.
A clear understanding of the facts helps the Committee assess the complaint objectively and arrive at a fair conclusion based on the available evidence.
Questions to Consider
• What was said or done?
• Is there documentary evidence?
• Are there witnesses?
• Is there consistency between statements and evidence?
POSH Lens: Focus on facts, context, frequency, and workplace impact rather than isolated interpretations.
4. Injury (Resulting Harm)
Definition: The harm, impact, or adverse consequence resulting from the conduct.
What the Internal Committee needs to keep in mind
When assessing a complaint, the Internal Committee should remember that the impact of sexual harassment is not limited to physical harm. The alleged conduct may also affect a person’s emotional well-being, sense of dignity, confidence, career progression, or overall experience at work.
The Committee should consider whether the complainant experienced:
• Emotional distress, anxiety, or stress
• Humiliation, embarrassment, or loss of dignity
• Fear or discomfort in the workplace
• A hostile, intimidating, or uncomfortable work environment
• Negative effects on work performance or career opportunities
• Retaliation, victimisation, or unfair treatment after reporting or rejecting the behaviour
Understanding the impact of the conduct helps the Committee assess not only what happened, but also how it affected the complainant and the workplace environment.
Questions to Consider
• How did the conduct affect the complainant?
• Did it interfere with work performance?
• Did it create an intimidating or hostile environment?
• Did the complainant avoid meetings, travel, or interactions because of the conduct?
Important POSH Perspective
Even where significant harm is not demonstrable, conduct may still constitute sexual harassment if it falls within the definition provided under the POSH Act and is objectively unwelcome.
How should the Internal Committee look at cases
Think in four layers
- Element Key – Perpetrator | Inquiry question – Who allegedly engaged in the conduct?
- Element Key – Mens Rea | Inquiry question – What can reasonably be inferred about the intent, awareness, or recklessness behind the conduct?
- Element Key – Actus Reus | Inquiry question – What exactly happened and what evidence supports it?
- Element Key – Injury | Inquiry question – What impact did the conduct have on the complainant and workplace environment?
Key Takeaway for the Internal Committee
A well-conducted POSH inquiry examines who acted (Perpetrator), what was done (Actus Reus), why or with what awareness it was done (Mens Rea), and what impact it caused (Injury). Looking at cases through these four lenses helps consultants conduct fair, structured, evidence-based assessments while remaining aligned with the objectives of the POSH Act and principles of natural justice.