Workplace Sexual Harassment: How Protected Are Women Gig Workers?

By Debarati Chakraborty (With expert inputs from Deepali Chauhan)

Witnessing the rise of an ever-evolving gig economy, the Government of India, through its ‘Social Security Code 2020’, has for the first time legally recognised gig workers and their right to protection and social security.

We spoke to Deepali Chauhan, Partner, KV Associates, to understand how the Indian legal system currently protects women gig workers from sexual harassment at workplaces.

The new Code, which aims to extend social security to employees and workers across sectors, includes protection of employees from sexual harassment at workplaces. It states that persons convicted and dismissed from service for sexual harassment will be disqualified from receiving bonus.

The Key Statute: POSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, is the key statute that governs sexual harassment against women in workplaces. This is also referred to as the POSH Act.

The POSH Act includes both physical as well as verbal and non-physical acts under the purview of sexual harassment. Therefore, any act of harassment, even virtual, will tantamount to an act of sexual harassment and will be covered within the scope of the POSH Act.

The two main components of the POSH Act:

1. An Internal Committee set up at the workplace
2. A Local Committee set up in the district

Does POSH Protect Gig Workers?

The intent of the POSH Act is to provide protection against sexual harassment of women at workplace and to ensure redressal of such complaints.

When it comes to the applicability of POSH Act on gig workers in India, there are contrasting views as the gig economy is still a relatively new concept. Some experts are of the view that gig workers are not included within the purview of the POSH Act, as they are freelancers and are considered to be ‘independent contractors’ and not employees.

This view is basis the interpretation that there are no specific health and safety laws governing gig workers and that the definition of ‘employee’ and ‘workplace’ are ambiguous in relation to gig workers under the provisions of the POSH Act and Rules.

“However, keeping in view, the aim and objective of the POSH Act and Rules, it is safe to say that the said act and rules will apply in case of gig workers too, even though, gig workers are not specifically included within the definitions under the POSH Act and Rules,” Chauhan says.

She adds that ‘workplace’ covers both ‘organised’ as well as ‘unorganised’ sectors. The ‘unorganised’ sector includes self-employed workers engaged in production of goods or in providing services of any kind. “Hence, individuals or self-employed workers included within the said definition, in our view, may cover gig workers,” she explains.

Raising A Sexual Harassment Complaint

According to the POSH Act, the concept of ‘extended workplace’ covers any place visited by the ‘aggrieved woman’ arising out of or during the course of employment, including transportation provided by the employer.

“Since, the Act covers all women working or visiting the ‘workplace’, any form of sexual harassment inside the client’s office premises would fall under the scope of the POSH Act,” Chauhan says.

Any ‘aggrieved woman’ (including gig workers) may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee, or to the Local Committee, in the absence of an Internal Committee.

While this has to be done within a period of three months from the date of incident, in the case of a series of incidents, the complaint must be made within a period of three months from the date of last incident. The Internal Committee or the Local Committee will have to proceed with an inquiry, and depending on requirement, forward the case to the police within a period of seven days.

Laws Protecting ‘Aggrieved Women’

The ‘aggrieved woman’ can file a complaint under laws pertaining to sexual harassment at workplace, including provisions under the Indian Penal Code, 1860. Some of the key offences related to sexual harassment under the Penal Code include Assault of criminal force to woman with intent to outrage her modesty (Section 354); Sexual Harassment (Section 354-A); Assault or use of criminal force to woman with the intent to disrobe (Section 354-B); Voyeurism (Section 354-C); Stalking (Section 354-D); and Word, gesture or act intended to insult the modesty of a woman (Section 509).

“POSH Act requires the employer to ensure redressal of these grievances in a time-bound manner,” Chauhan says.

Talking about sexual harassment during travel or stay in a hotel, Chauhan says, “Harassment arising out of or during the course of work may tantamount to sexual harassment at workplace. The ‘aggrieved woman’ can file a complaint against such harassment as per the POSH Act.”

It is important to know that ‘workplace’ includes any place visited by the ‘aggrieved woman’ arising out of or during the course of work and establishments used for commercial activities. The scope of workplace, hence, comprises travel for work and transportation.

By launching Sexual Harassment electronic–Box (SHe-Box), the Government of India has added another level of protection for women employees, including gig workers. Developed by the Ministry of Women and Child Development, the online platform is meant for women (including government and private employees) to register complaints related to sexual harassment at workplaces. Complaints received on SHe-Box are directed to the relevant Committee and the progress of the investigation is monitored by the complainant and the Ministry.

Aimed at facilitating reporting of complaints related to sexual harassment of women at workplace, The SHe-Box portal has so far mitigated 203 cases, which include cases under the Centre, state governments and private sector.

Difficulties In Redressal of Complaints

Despite laws that protect women employees in India, the process of redressal of grievances raised by women gig workers can be complicated. Since gig workers are classified as ‘independent contractors’ (and are not included within the purview of traditional employment) such workers have no employers. As a result, providing redressal by the employers’ Internal Committee may become difficult and challenging.

In case there is no access to the Internal Committee, women gig workers can file a complaint with the Local Committee and / or the local police station. However, they may find it difficult to approach the courts, as there is no specific law that governs employers be made responsible for prevention and redressal of sexual harassment in the case of gig workers.

“Another reason why women gig workers fail to take action against perpetrators is the lack of awareness of redressal mechanism and laws that protect them against sexual harassment at workplaces,” Chauhan adds.

Measures An Employer Can Take

“My advice to employers or the management of an establishment is to take a few necessary preventive measures,” Chauhan says. She recommends the following steps to ensure protection of women gig workers against sexual harassment at workplaces:

• Formulate a company policy on prevention and redressal of sexual harassment
• The company policy should be gender neutral and include gig workers within the definition of their employees
• Clearly define Sexual Harassment under the policy and clearly outline the scope and applicability
• Reiterate protection of persons against sexual harassment and mention zero-tolerance towards sexual harassment provisions
• Include concept of extended workplace in the policy
• Set out a well-defined complaint redressal mechanism for gig workers
• Provide a copy of the policy to all new gig workers
• Include provisions of POSH in the terms of use of services by customers
• Make provisions for initiating criminal action against perpetrators
• Work with National Commission of Women who may, along-with aggregators, organise gender sensitisation and awareness programmes, self-defence classes and training workshops for gig workers
• Conduct orientation and sensitisation programmes for Internal Committee members in relation to gig workers
• Include provisions on compliance with POSH Act, Rules and company policy in the contract that the company enters with gig workers
• A clear agreement on requirements for gig worker to be deployed on the clients’ premises
• Display provisions of POSH Act and Rules in both English and vernacular languages within the office premises
• Providing resources and assistance while complaint is received and during inquiry
• Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
• Share sexual harassment policies with both gig workers and buyers/users of services