Sexual Harassment is one of the most noxious problems that we face today.
It has been more than 6 years since the POSH Act was enforced and enacted by our legislature with an aim to strengthen and fill the lacunae present in the Vishaka Guidelines. Even prior to the passing of the POSH Act, 2013, our courts had highlighted the importance of widening the scope of the term ‘workplace’. For instance, in Ayesha Khatun v. The State of West Bengal & Others (MANU/WB/0071/2012), the Calcutta High Court had observed that “a logical meaning should be given to the expression ‘workplace’ so that the purpose for which those guidelines have been framed, is not made unworkable.”
‘Workplace’ – How is it defined under Section 2(o) of POSH Law?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) has given a wide definition to the term ‘workplace’ under Section 2(o) of the Act and included the concept of ‘extended workplace’ in its definition. Under the POSH Act, workplace includes:
- 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;
- 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, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
- hospitals or nursing homes;
- any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
- any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
- a dwelling place or a house
The term workplace also includes unorganized sector which means an enterprise owned by individuals or self-employed workers, engaged in the production or sale of goods or providing service of any kind whatsoever, and the number of such workers is less than ten. It is evident from the above definition of workplace that the concept of extended workplace is also incorporated, that is to say that it includes any place visited by the employee arising out of or during the course of employment and also includes transportation provided by the employer for undertaking such journey. This has been subjected to judicial interpretations since the beginning and the theory of ‘notional extension’ has been used by courts while interpreting laws governing compensation to be awarded to employees or workmen in case they sustain injuries during the course of their employment.
For instance, the court in the case of Saurashtra Salt Manufacturing Co. vs. Bai Valu Raja and Ors. (MANU/SC/0166/1958), had observed that “as a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer’s premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer’s premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.”
The New Normal – ‘Work From Home’ – Is it Extended Workplace?
Considering the new normal of ‘work from home’, virtual workplaces have been a boon to industries and companies and the magnitude of this platform has broadened over the past year due to the pandemic. In fact, companies are looking at this as a long-term solution and as a means to cut costs, for example: Tata Consultancy Services (TCS), in 2020 had announced that post – covid, 75% of 4.5 lakh of their employees will be permanently working from home by the year 2025. The new normal has given rise to the acts of sexual harassment through virtual mediums. Women are sharing their experiences wherein they’ve been asked to adjust the angles of their cameras to show more than just their face.
A survey released in March by the Network of Women in Media, India, and Gender at Work, found that over one-third of its 456 respondents from the media industry had experienced some form of sexual harassment at their workplaces, and over half of them did not report the incident. Now the question which arises is whether sexual harassment occurring during the course of ‘work from home’ comes under the definition of ‘workplace’?
Answering the question in affirmative, the Delhi High Court in Saurabh Kumar Mallick v. Comptroller & Auditor General of India (MANU/DE/0956/2008), had observed that “A person can interact or do business conference with other person while sitting in some other country by means of video-conferencing. It is also becoming a trend that office is run by certain CEOs from their residence. Obviously, members of public would not have access to that place, though personal staff of such an officer would be present there. In a case like, this if such an officer indulges into an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at ‘workplace’, but at his ‘residence’ and get away with the same.”
Further, it is interesting to note that, according to Section 2(o)(vi) of the Act, the term workplace includes ‘dwelling place or a house’. Although the birds eye view of the term goes to show that it refers to domestic workers and house helpers who are working or employed in a dwelling place or a house. But due to ‘work from home’ becoming a new norm and considering the intention of the legislation, it is safe to say that sexual harassment occurring during the course of ‘work from home’ is also covered by POSH Law.
On similar lines, the Sikkim High Court in the case of Silajit Guha vs. Sikkim University & Ors. (MANU/SI/0082/2020), had observed that the definition of ‘workplace’ under the POSH Act and the UGC Regulations is an inclusive one and not an exhaustive one.
SMS / Chat – is it workplace?
Another question which arises is whether the SMS, chats exchanged between the two parties can be considered as sexual harassment at workplace? For example, if your employer proposes you or sends you an offensive or a derogatory message on WhatsApp, will it be covered under the scope of sexual harassment at workplace, even though it has happened via online mode? The Delhi High Court answered this question in the case of Jahid Ali vs Union of India (MANU/DE/7886/2017), while observing that Sexual harassment at a workplace is considered a violation of women’s right to equality, life and liberty, upheld the dismissal of the Petitioner on the ground that Petitioner had sent sexually coloured messages to his Superior Lady Officer.
Work is never restricted to the four walls of the office. It is now well accepted that a workplace is not only limited to the physical place of work but goes beyond the physical boundaries of the primary workplace or office building. In fact, in Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University (MANU/MH/0912/2014), the Bombay High Court had observed that the definition of workplace under the POSH Act, 2013 is inclusive and again deliberately kept wide by the Parliament to ensure that any area where women may be subjected to Sexual Harassment is not left unattended or unprovoked for.
Therefore, it can be concluded that the concept of ‘extended workplace’ is a positive step towards the empowerment of women and successful implementation of the POSH Law – not only in letter but also in spirit. In today’s world, as more and more number of women are working, there is a dire need for stricter implementation of the provisions of POSH Law. Virtual workplaces are becoming an unavoidable tool for many working professionals and a necessity as we move forward. Under the law, employers are responsible towards providing a safe working environment for their employees and thus with the new normal of digital workspaces, there is no doubt that these responsibilities should extend to include virtual workplaces as well.
– Esha Shah, Paralegal – POSH at Work