This article is written by Goran Trbojević, pursuing Certificate Course in Prevention of Sexual Harassment at the Workplace from Lawsikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) has been brought to provide protection against sexual harassment of women at the workplace. This act defines the workplace as it is not always obvious what falls under that term. While the place of work generally appears clear and unambiguous, some circumstances require the term to be extended to all other places that the work process is connected to. The way we communicate and the way we operate our business tasks have changed in recent years. Such changes are happening fast due to the development of technical solutions in the digital era. The term ‘workplace’ can be best explained through examples from real-life situations and court cases.
Workplace as defined in POSH Act
The workplace is defined in the POSH Act in Chapter I, Section 2(o). In order to better understand it, here are some situation scenarios per each subsection as examples.
- Subsection (i): any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society.
For example, a female apprentice that works for the Ministry of Finance is sexually harassed by the deputy minister. It happens in his office in the Ministry building.
- Subsection (ii): any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;
Example: a male Sales Manager from Delhi is visiting a company’s branch office in Mumbai. He sexually harasses the Branch Office Manager who is a female, in her office.
- Subsection (iii): hospitals or nursing homes.
For example, a female doctor works in a private clinic. After her shift, on her way home, she is sexually harassed by her male colleague at the clinic´s parking lot.
- Subsection (iv): any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto.
For example, a female athlete is sexually harassed by her male coach. This happens after a workout in the gym locker room.
- Subsection (v): any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey.
For example, a company throws a party for its employees. The party is held in a private restaurant. A male employee addresses his female colleague and makes vulgar comments.
- Subsection (vi): a dwelling place or a house.
For example, a woman works as a housemaid. Her employer has been harassing her by repeatedly making sexual gestures at her.
The term workplace also includes the unorganized sector where the number of workers is less than ten (such as self-employed workers and individually owned enterprises).
As can be seen, the law includes any place visited by the employee as a workplace, as long as it arises out of or during the course of employment, including accommodation and transportation provided by the employer.
The most common examples of workplace extensions
The list of all the possible extensions of the workplace is not something that is final and definitive. With the development of business processes, technological tools and always changing life circumstances that list will be constantly expanding. In the present time, some of the not-so-obvious work environments can be singled out as the most common examples. They are defined in the POSH Act in Chapter I, Section 2(o), Subsection (v).
a) Team-buildings and incentives
With the aim of optimising the teamwork and individual skills of their employees, employers often organize activities out of the workplace for team building that includes group challenges, team sports tournaments, puzzle-solving, etc. An incentive is traditionally in the shape of a prize, travel, or outing, usually given as a reward after a team has been particularly productive at work. Such outing destinations are organized and managed by the employers and attended during the course of employment. As such, they fall under the term of the workplace, as well as:
b) Seminars, conferences and business trips
A part of a woman’s job is attending all kinds of events that include extra education related to her profession – whether she is an attendant or attendee. Meetings and contracting in other towns with clients and partners are common things. At all these places, outside the premises of the employer, women can be exposed to all kinds of unpleasant situations.
c) Taxi services
Transportation to the workplace provided by the employer for the employee is not obligatory. However, if that is the case, the employer holds responsibility if passengers are harassed by the driver. Since the safety of the women passengers commuting to work has to be ensured and the insides of the vehicle represent an extension of the workplace, this is also a scenario that is covered by the POSH Act.
d) Cyberspace
Business activities are often conducted through video or audio conferences. If during such a conference any incident of harassment takes place, the aggrieved woman can file a charge as these situations are covered by the POSH Act. We´ll say something more about this in the next paragraph, for this topic deserves some more space due to the rise of the use of digital technologies in recent years.
New normal : work from home as extended workplace
Due to the COVID-19 pandemic, offices have moved into employees´ homes over the past year. Video meetings and conferences began to take place on Zoom, Teams, and other similar digital platforms with participants attending online while sitting in their living rooms. Although this rose out of necessity in tough times, companies soon realized this could work out as a long-term solution. Cutting costs seemed particularly appealing to them. For example, in 2020 India’s largest IT service firm Tata Consultancy Services had decided to prolong the measure of working from home to the year 2025 for 75% of their workforce.
In such circumstances, one could imagine that number of workplace harassment cases would dropdown. Instead, the acts of harassment only transformed and began to take place on virtual mediums. A survey conducted by the Network of Women in Media, India, and Gender at Work, found that over 33% of its respondents from the media industry had experienced some form of sexual harassment at their workplaces.
Even before bringing the POSH Act in 2013, it was clear that work at/from home comes under the definition of workplace. In 2008 in the case Saurabh Kumar Mallick vs. Comptroller & Auditor General of India, the Delhi High Court stated that the workplace is not limited to a physical office. To dismiss all the doubts there is Section 2(o)(vi) of the POSH Act, where the term workplace includes dwelling place or a house. Yes, it was enlisted with domestic workers and maids in mind, but it is clear that it covers work from home as the norm of the present time. The inclusivity of the definition of the workplace under the POSH Act had been highlighted by the Sikkim High Court in the case of Silajit Guha vs. Sikkim University & Ors.
The use of social networks such as WhatsApp, Messenger, Viber, Facebook, etc. is not excluded from the scope of the workplace. Sending messages in any form (textual, graphic, video, or audio) is by no means less susceptible to consideration in assessing a colleague´s harassment. This opinion was held by the Delhi High Court in the case of Jahid Ali vs. Union of India.
Conclusion
There is consensus among employers, employees, and legal practitioners that a workplace is not only limited to the physical space of work. The consensus is global: in order to eliminate gender-based violence and harassment at work International Labour Organization Convention 190 (C190) on June 25, 2021, brought Recommendation 206. It is the first global treaty on violence and harassment in the field of work. By the Convention, the concept of “the world of work“ is expanded beyond the physical workplace.
In that light, it can be concluded that the POSH Act interprets the term work in a proper way and leaves room for its extension and additional interpretations. It takes into consideration new norms of performing business tasks and as such serves as a good tool in preventing women from facing sexual harassment at work. In the case of litigation, the aggrieved woman may consider herself well protected under the POSH Act even in cases where the physical boundaries of the workplace are unclear. The practice has shown that the foundations of this Act are well laid and it can cope well with the challenges of changing circumstances.
References
1) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 https://legislative.gov.in/sites/default/files/A2013-14.pdf
2) Khetarpal S.: „Post-COVID, 75% of 4.5 lakh TCS employees to permanently work from home by ’25; from 20%“, BusinessToday.In, 2020, 11 Jun
3) Ranalvi M.: „Act now to stop harassment in the virtual workplace“, Livemint.com, 2020, 8 Jul
4) Bhasin & Co.: „Workplace defined in sexual harassment case“, India Business Law Journal,
2008, 26 Dec
https://law.asia/workplace-defined-in-sexual-harassment-case/
5) Sikkim High Court, Silajit Guha vs Sikkim University And Ors on 3 July 2021
https://indiankanoon.org/doc/10859819/
6) Delhi High Court, Jahid Ali vs Union Of India & Ors. on 27 September 2017
https://indiankanoon.org/doc/179353262/
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