While virtual workplaces have been a boon to industries and companies, the magnitude of this platform has broadened over the past year due to the pandemic, which forced many traditional workplaces to accept the new normal with the use of the internet. 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) has recently announced that 75% of 4.5 lakh of their employees to be permanently working from home by the year 2025.
The new normal has given rise to acts of sexual harassment through virtual mediums making it perilous to continue working through such mediums without the protection of law. Hence, the question that arises is, does the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act & Rules, 2013 (“POSH Law”) cover virtual workplaces in its definition of ‘Workplace’? The definition of ‘Workplace’ as per POSH Law includes, any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey as well as a dwelling place or a house.
While the provision of POSH Law appears to be broad and all encompassing, however, virtual workplaces have also not been categorically mentioned in the definition. Therefore, it is also left to interpretation of the definition and reliance on judgments. As was held in Ayesha Khatun vs. The State of West Bengal & Others, by Calcutta High Court on 17th February 2012 that “Workplace, in my view, cannot be given a restricted meaning so as to restrict the application of the said guidelines…Workplace should be given a broader and wider meaning…so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace…”
Any place visited by the employee arising out of or during the course of employment – what does this mean?
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 example, in Saurashtra Salt Manufacturing Co. vs. Bai Valu Raja and Ors AIR 1958 SC 881, the Supreme Court observed that the theory of notional extension of the employer’s premises would include an area which the workman passes and repasses in going to and in leaving the actual place of work. 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.
In the context of sexual harassment at workplace, this can be better understood by looking at the decision of the Gauhati High Court in Biplab Kumar Das vs. IDBI Bank Ltd. and Ors, decided on 5th June 2017. Court held that in the instant case, the alleged incident took place in Kolkata where the appellant was sent by his employer to attend a training programme. He was assigned that duty during his course of employment and the training programme was an incidence arising of his employment.
Similarly in Gaurav Jain vs. Hindustan Latex Family Planning Promotion Trust and Ors., decided on 6th August 2015, the High Court of Delhi, held that the incident took place at a hotel room booked by the Respondent in sole capacity for himself and a room on the same floor for the complainant. This was considered as an incident that happened at the workplace, as they both were travelling for official reasons. There are several other judgments that have held extended workplaces to be workplace for the purpose of the POSH Law.
Does ‘any place visited’ include visiting a place virtually?
This is a question that has not been answered categorically in the POSH Law. However, if we look at the observation of the High Court of Delhi in Saurabh Kumar Mallick vs. Comptroller & Auditor General of India (Civil Writ Petition No. 8649 of 2007), the answer to this question may appear to be clear. In this case it was held 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.”
The Order of the Rajasthan High Court dated 11th January 2021 in the case of Sanjeev Mishra v The Disciplinary Authority and General Manager, Zonal Head, Bank of Baroda, is also relevant here. The Court, in this case, said that “In the present digital world, workplace for employees working in the Bank and who have earlier worked in the same Branch and later on shifted to different branches which may be situated in different States has to be treated completely as one workplace on a digital platform. Thus, if a person may be posted in Jaipur and acts on a digital platform harassing another lady who may be posted in a different State, it would come within the ambit of being harassed in a common workplace.”