Employment Law Newsletter – The Silent Witness Speaks: Bystander Intervention under POSH Law : February 2025
In bustling workplaces, where conversations overlap and deadlines loom, harassment often unfolds not in the shadows but in plain sight. Yet, it is common for bystanders to turn a blind eye—fearing backlash, unsure of their role, or simply uncomfortable stepping in. But what if the law and their respective workplaces empowered them to act?
A. The Role of Bystanders in POSH Law
The Sexual Harassment of Women at Workplace (Protection, Prohibition and Redressal) Act, 2013 Act, 2013 (POSH Act) primarily safeguards victims and holds perpetrators accountable. However, it leaves a grey area when it comes to bystanders—those silent witnesses who see, hear, and know. While the law does not explicitly compel them to intervene, its essence and the spirit of the Vishakha Guidelines[1] encourage the creation of a safe and dignified workplace environment, where silence is not complicity. The law in principle underscores the importance of individuals witnessing the wrong not being passive and actively stand against justice to prevent the evil.
B. Insight from Judicial Precedents:
In the case of Medha Kotwal[2], emphasized that employers are not just responsible for addressing complaints but also for preventing sexual harassment. This preventive approach implicitly calls upon everyone in the workplace, including bystanders, to contribute to a culture of vigilance and respect.
Similarly, in Apparel Export Promotion Council[3], the Court expanded the definition of sexual harassment and stressed that allowing inappropriate behaviour to go unchecked normalizes a hostile work environment. While this case focused on employer liability, it underscored the necessity of collective responsibility, highlighting how bystanders’ silence can perpetuate misconduct.
C. How Can Bystanders Can Make a Difference
Bystanders are more than passive onlookers—they can be catalysts for change. Here’s are 3 steps in which they can actively intervene:
- Notice: Observing to understand if and why intervention is required? Is an employee inappropriately touching another Employee? Is someone being bullied or harassed based on their gender? Is someone telling an inappropriate joke? Is someone passing sexually coloured remarks?
- Taking the responsibility: Noticing and observing the surroundings passively is not enough. As a bystander, one must intent to intervene to stop the wrongdoing. A sense of understanding towards this collective as well as induvial responsibility is essential to the role of bystanders.
- Act: This is the penultimate step to put into discourse all the aforementioned elements. The action taken by bystanders to sexual harassment needs to be tactful, sensible and careful. The following approaches can be adopted by bystanders in this light:
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- Direct Action: Confronting the harasser if it feels safe to do so.
- Prompt Delegation: Reporting the incident to HR or the Internal Committee (IC).
- Using Distraction to stop the incident: Sometimes, direct intervention may result in an increased hostility and further jeopardise the safety of the involved victim. Carefully defusing the situation by changing the subject or interrupting the interaction can be an impactful way of stopping the incident.
- Documentation: Recording details to support an official complaint if needed. However, consent is of paramount importance in such situations. If the documentation is a result of regular security and surveillance of the premises, the parties involved have a deemed consent to being recorded. However, if a bystander wants to record a video of the incident, ensuring the safety of the victim and obtaining informed consent is imperative.
D. How can companies strengthen the legal position of bystander intervention despite a relatively silent law?
Strengthening the legal position of a bystander with respect to POSH can start with something as basic gender sensitisation. These things depend on the established values being practiced in an establishment. The question is, how can companies weave the concept of bystander intervention into the very fabric of their POSH compliances? Here are some ways:
- Strengthening POSH Policies: The Power of Proactive Provisions:
- Training and Awareness Programs:
- Developing Anonymous Reporting Mechanisms:
- Whistleblower Protection:
- Non-Retaliation Assurance:
- Intensifying IC Training Programs
- Ongoing Awareness Programs:
E. A Cultural Shift: Moving from Silence to Solidarity
A step-up approach by workplaces towards recognising and strengthening the legal position of bystander intervention is the need of this hour in ensuring safety of employees at workplaces.
A proactive work culture that emphasizes intervention mitigates the likelihood of harassment incidents and, consequently, potential litigation. Evidence of robust training and clear policies can serve as an affirmative defence, demonstrating that the employer took reasonable steps to prevent harassment. By aligning internal policies with the evolving legal landscape, companies not only meet statutory obligations but exceed them. Establishments with well-documented training and intervention protocols are better insulated from claims of negligence.
In today’s litigious environment, a commitment to proactive measures can bolster an organization’s reputation. A safe and respectful work environment attracts talent and reduces attrition ultimately leading to legal and financial stability. Needless to say, preventing harassment through bystander intervention training can result in a measurable reduction in legal liabilities and compensation claims. This not only protects the bottom line but also reinforces the company’s standing as a responsible employer.
As a concluding note, the maxim “Qui tacet consentire videtur” meaning that silence implies consent needs to loosen the grip on the minds of a responsible bystander. When it comes to witnessing a sexual harassment incident, SILENCE is no longer an option. Today, workplaces need to transform silent witnesses into vocal advocates, ensuring that justice is not just done but seen to be done. In this era of accountability, the question isn’t whether bystanders should intervene—the question is, how can we empower them to do so effectively?
