Does a Supervisory Role Make You an "Employer" Under the POSH Act?

When a sexual harassment complaint is made against a CEO, director, managing trustee, principal or another senior functionary, a common question arises: Should the complaint be investigated by the Internal Committee (“IC”), or does it automatically fall within the jurisdiction of the Local Committee (“LC”) because the respondent heads the organisation?

The Kerala High Court, in the case of Prof. (Dr.) J. Sundaresan Pillai v. Dr. K.K. Seethalakshmi, has clarified that designation alone does not determine who the "employer" is under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act").

The case concerned a complaint against the Director of a registered society. The Director argued that he was the "employer" under the POSH Act and, therefore, the complaint ought to have been referred to the LC.

The Court examined the institution's governance framework and found that the Director was appointed by, accountable to, and subject to the control of the Executive Committee and General Body. Although he exercised significant managerial powers, ultimate control over the organisation rested with these governing bodies.

Accordingly, the Director was held to be an employee, not the "employer", and the IC retained jurisdiction to investigate the complaint.

The judgment reinforces that the determination of who is an "employer" depends on who ultimately controls the organisation, rather than who manages its day-to-day affairs.

When assessing jurisdiction under the POSH Act, organizations should consider:

• Who appoints the individual?

  
  

• Who has the power to remove or discipline them?

  
  

• Who approves key organizational decisions?

  
  

• Who formulates policies?

  
  

• To whom is the individual ultimately accountable?

The answers to these questions are more significant than the individual's designation.

The ruling has wider implications for complaints against senior leadership, including CEOs, Managing Directors, Principals, Vice-Chancellors, Managing Trustees and Executive Directors.

Holding the highest executive position does not, by itself, make a person the "employer" under the POSH Act. Where that individual remains accountable to a board, governing council, trust, shareholders or another supervisory body, the IC may continue to have jurisdiction.

The Kerala High Court has reaffirmed that governance — not job title — determines who the "employer" is under the POSH Act. Organizations should therefore look beyond designations and carefully examine their governance documents, reporting structures and decision-making framework when determining the appropriate forum for investigating a complaint under the POSH Act.