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Introduction
A recent incident of workplace sexual harassment reported through X (formerly Twitter) has highlighted the concerns emerging in the context of safety of women and atypical workplace. The incident itself came to light when the aggrieved, a woman, took to X to share her experience of sexual harassment that allegedly took place at her residence, by a delivery person, when ordering from a popular food delivery company at night.
This incident is unique from the perspective of a workplace context as it deals with non-standard work settings. With rising incidents like this there is a pressing need for employers to review their policies and practices when it comes to implementation of The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act) at atypical workplaces.
Table of Contents
Background of the case
The incident came to light when the aggrieved, a resident of Ahmedabad, tweeted about her experience on X. She stated that it happened when she used the app to order coffee at night. The woman reported that when she went to collect her order the delivery person was apologising for the delay and was seeking help for a leg injury which turned out to be fake. She states that when she looked down to see the said injury, he flashed his genitals at her and was smiling, asking her to help him. Disturbed by the incident, she stated that she immediately complained about the entire incident to the customer care team of the company. According to her, the customer care representative she connected with told her that they will inquire into the matter and revert. As per her now deleted post, the food delivery company contacted her after few days (unspecified) and informed her that the alleged offender was terminated.
This incident has brought to light the lack of safety women experience, despite the enactment of special legislations. This has sparked online debate as the aggrieved woman expressed valid concerns for her safety since the alleged offender now knows where she resides.
Moreover, the fact that this incident occurred during the course of work of the alleged offender it raises questions about the gap in the provision of the POSH Act, for incidences arising at atypical workplace setup.
From the details we can glean online about the facts of this case from news outlets reporting the case, we understand that:
- Time was taken by the company to review the facts of the case or at least the same was communicated to the aggrieved.
- The aggrieved person was provided legal assistance by the company
–this is in line with duties of the organisation under POSH Act. - Punitive action was taken against the accused (termination)
- Eventually the post was taken down by the aggrieved woman.
As it stands, we have no information on the processes and protocols followed by the company prior to termination of the alleged offender.
Exploring the incident through the lens of POSH Act: Does it fall within purview of the Act?
As we reviewed this incident, we explored the applicability of the POSH Act in such an atypical workplace context, wherein the act was committed at the residence of the aggrieved, by a person employed by the food delivery company.
We reflected on:
- Whether the incident was one of sexual harassment
- Whether the incident occurred in the context of the workplace
- Whether the accused was an employee of the company
- Whether the complaint was filed within the time limit provided under the Act
- Whether the aggrieved was within rights to file a complaint under the Act
The extent and scope of the term “Sexual Harassment” under POSH Act
Section 2(n) and Section 3 of the POSH Act, 2013, explain the scope and ambit of the term sexual harassment. The essence of these sections indicate that, the act of sexual harassment includes any unwelcome physical contact, sexual comments, promises in return for sexual favours, displaying sexually graphic pictures, unwanted conduct of a sexual nature, which maybe verbal or non-verbal and which is intended to, or has the effect of, violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them amongst many more.
It may be noted that even if the unwanted sexual conduct is not intended, it can still be considered as an act of sexual harassment if it has the effect of violating a person’s dignity or creating a hostile environment. Thus, the incident of flashing genitals in this case falls under the category of non-verbal conduct of sexual nature violating the aggrieved person’s dignity and creating hostile environment.Therefore, it is sexual harassment under POSH Act.
The extended definition of “Workplace”
Reflecting on the nature of the workplace in this context, we draw distinction from the typical understanding of a traditional brick and mortar workplace with clearly defined walls. Since the pandemic we are observing the rise of atypical workspaces where there are communication challenges, performance and work monitoring challenges, increased risk of data breaches and difficulty in ensuring that the employees comply with the statutory and regulatory requirements – requiring employers and decision makers to relook at policies and practices and aligning in accordance with the Act.
In this case, we understand that this act of sexual harassment occurred given that the delivery agent was employed or professionally associated with the food delivery platform company and was at the woman’s residence on account of his professional role and responsibilities – thereby indicating the fulfilment of the “workplace” criterion under the Act.
Deciphering the meaning of “Employee” under POSH Act
Section 2(f) of the POSH Act defines employee to mean a person employed at a workplace for any work on a regular, temporary, ad hoc, or daily wage basis, either directly or through an agent such as a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name. Therefore, the scope of who is considered as an employee is fairly wide.
In this case, the delivery person received payments and incentives from the food delivery company and was therefore an “employee” under POSH Act.
- Timeline for filing a complaint under POSH Act
As per Section 9(1) of the POSH Act, the complaint must be filed within 3 months of the last incident of sexual harassment. Additional 3 months may be allowed if the Internal Committee is satisfied with the reasons for such delay. In this case, the aggrieved person raised a complaint immediately after the incident fulfilling the timeline requirement under the POSH Act.
- Understanding who can file a complaint under the POSH Act
Further, Section 2(a) of the POSH Act, 2013, provides that an aggrieved woman may be a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. Thus, given that the definition does not necessitate the woman to be an employee, even a customer/client can also file a complaint.
The elements that need to be fulfilled for a valid sexual harassment complaint under POSH Act are –
- Sexual connotation – the incident must have a sexual context
- Workplace context – the incident must occur in workplace setting
- Against an employee – the complaint must be filed against an employee of the company
- Timely filing – the complaint should be filed within 3 months of the last act of sexual harassment, with extension of additional 3 months under certain circumstances.
As all of the above requirements have been fulfilled in this case, the aggrieved is well within her rights to file a complaint under the POSH Act.
Thus, based on all these aforementioned statutory provisions, it is safe to draw out a conclusion that the act of the delivery agent, flashing his genitals towards a customer in the course of his work, is an act of sexual harassment at workplace under the POSH Act, 2013.
Thus, though the company in this case seems to have taken immediate recourse, perhaps a more equitable and appropriate method of taking cognizance as per this Act would have been through the intervention of the Internal Committee (IC). In the case of this incident, we are unaware of the process followed prior to termination of the accused. The information regards the termination of the alleged offender was made public by the aggrieved after being informed about the same by the food delivery company.
As per the POSH Act, the aggrieved should be supported to file a written complaint with the Internal Committee (IC) of the company. This would be a process initiated alongside supporting her to access legal support/ file an FIR, in line with the provisions laid out under POSH Act.
Scope of Prevention of Sexual Harassment in Atypical Workplaces
It has been more than ten years since the enactments of POSH Act and its rules. However, recently in Aureliano Fernandes v. State of Goa and Others(Civil Appeal No. 2482 of 2014), the Supreme Court has observed serious lapses in the implementation of the POSH Act ,and issued directions for effective implementation of the same. There has been a rise in new forms of sexual harassment due to rise in atypical workplace setups.
To address these contemporary forms of workplaces, the courts have from time to time expounded the law and widened the interpretation of the existing Act to deliver justice to the aggrieved and safeguard working environment. For instance, in Ayesha Khatun v. The State of West Bengal & Others , the Calcutta High Court 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.”
In Sanjeev Mishra v. Disciplinary Authority and General Manager, Bank of Baroda and Ors., the High Court of Rajasthan by taking into consideration the present-day workplace being largely a work from home setup held digital workplace setting will also be considered as workplace and therefore any act of sexual harassment on these platforms will be attracting the legal provisions of the POSH Act, 2013.
Similarly, the High Court of Delhi in Saurabh Kumar Mallick v. Comptroller & Auditor General of India expounded the definition of workplace and held that it was not necessary that a workplace would be only a place where the actual office work is performed. Any extension of place of work or any institution whether a hostel or a mess where the employer has control of management would also be treated as workplace by giving wider connotation of the expression. Additionally, the Bombay High Court in Jaya Kodate v Rashtrasant Tukdoji Maharaj Nagpur University has observed that ‘the definition of workplace is inclusive and deliberately kept wide by the Parliament to ensure that any area where a woman may be subjected to sexual harassment is not left unattended.’
Based on the above judicial pronouncement’s, it is clear the courts have recognised the concept of extended workplace under the POSH Act, 2013 to address the issues of sexual harassment not just in virtual workplaces or work from home situation but also an atypical workplaces.
Recommendations to Employers to prevent sexual harassment at their atypical workplace.
It is the need of the hour to evolve our understanding of POSH Act in the light of the diverse workspaces that are emerging, we recommend the following initiatives which can be adopted by the employers who are running and managing the atypical workspaces:
- Develop a zero-tolerance internal policy based on the POSH Act, that adequately defines sexual harassment and acknowledges the unique challenges that might arise due to their atypical workplace setup. This policy needs to be made available to all their employees (including contractual employees, vendors and consultants). This policy should be accessible on their website and mobile application. The policy should properly lay down consequences of violating the provisions of the Act and clauses of the policy. The policy should also be displayed in conspicuous place through posters. Employees should also be made aware of the changes in the policy on a regular basis through mailers, official onboarding practices and documents, training and awareness initiatives etc.
- Given the unique workspace setting, it encompasses a mobile application, that customers access. Therefore, specific reporting mechanism needs to be consciously implemented on such e-platform. This means that if a virtual app is an extension of the workplace, all duties of the employer will apply and need to be adapted for this e-platform. Information regarding the POSH policy of the organisation and information regards the IC need to be available on the app. Similarly, all service providers in atypical workplaces will need to ensure the same – delivery services, cab services, other home-based service providers, etc. Employees as well as customers will need to have access to information about their rights and duties under the Act.
- In addition to the contact particulars of the IC given the nature of the concerns raised, we suggest that a separate number could be provided under customer care to support customers real time if they have experienced sexual harassment by employee of the organisation providing the service. This can also help in preventing the aggrieved person to taking to their public social media accounts to flag the untoward incident – as this may further impact IC inquiry process, given the scrutiny that it brings, and breach of confidentiality as a result.
- For this to be effective, the person(s) available to take these distressed calls must be specifically trained on maintaining confidentiality, to support with sensitivity and empathy as the person shares their grievance, provide the aggrieved with information regards IC process and their right to file an FIR. They must actively support to file complaint with IC, if the aggrieved chooses to and immediately report and flag the concern to the IC for further process.
- Conduct training sessions for all the employees, irrespective of the nature of their position and role within the firm.
- Training and sensitization programs must include:
->Rights and Duties of employees and associates per the Act and policy
->Unique scenarios specific to the workplace and nature of work. The training needs to be specially made relevant for roles that are atypical (cab drivers, film sets, delivery providers, service providers home care personnel, etc)
->Consequences for non-adherence - As far as possible provide training/ informational posters/ mailers, etc. in all relevant languages so that all employees and associates from all intersections and roles, understand their rights and duties under Act.
- Specific training for managers, decision-makers and first responders (complaints officers, call operators / agents handling internal or external complaints, any persons operating / managing whistleblowers or anonymous complaint processes):
->To include sensitization and skill building around responding to complaints of Sexual HarassmentTo make referrals to IC
->To encourage the aggrieved person to reach out the IC
->To ensure that no parallel processes of inquiry/ action are initiated
->To ensure confidentiality is maintained in accordance with the Act - Specific training for IC members to be able to understand and navigate the nuances of the Law when it comes to unique and atypical workplaces.
- Continuously review and update policies as per the emerging changes in the laws and expansion of nature of services being provided.
Written by Adv. Vasantha Kotagiri, Rosanna Rodrigues and Deeksha Rai | Reviewed by Prerana Saraf
