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POSH ACT AND WORK FROM HOME

The Prevention of Sexual Harassment (POSH) Act is a crucial legislation that aims to create a safe and respectful work environment for employees. In recent times, with the rise of remote work and the concept of work from home becoming more prevalent, there has been a need to extend the definition of the workplace under the POSH Act to include virtual or remote work settings. This extension is essential to ensure that employees are protected from sexual harassment even when they are working from the comfort of their homes. By recognizing work from home as an extension of the workplace, the POSH Act can effectively address and prevent instances of sexual harassment that may occur in virtual work environments. This adaptation of the Act reflects the changing dynamics of the modern workforce and emphasizes the importance of maintaining a safe and respectful work environment regardless of physical location.

Virtual Harassment

Posh Act

Virtual harassment is construed as personal comments on the person’s social media handles; inappropriate emojis and messages; stalking, threatening about performance ratings; insisting on video calls well after office hours; inappropriate or sexist jokes to ‘lighten’ the mood; not maintaining a dress code during video conferences and calls; undefined work hours, non-consensual image sharing, bullying, trolling, online reputation damage cases have also started surfacing, which are not given much concern.

workplace harassment

Expanding the ‘Workplace’:  The Dawn of Telecommuting

The POSH Act defines ‘workplace’ as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey”.

Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any ‘workplace’. It is apparent that an important facet that requires determination is the scope of what comprises a ‘workplace’ under the Act. Any misconduct in question that may qualify as sexual harassment in terms of the Act, but which occurs outside the workplace, may not typically attract the provisions of the Act.

The definition of ‘workplace’ under Section 2(o) of the Act, is an inclusive and non-exhaustive definition and includes any place visited by the employee arising out of or during the course of employment, including a dwelling place or a house. This allows discretion to the relevant adjudicating authority to determine the exact scope of the ‘workplace’ in the facts and circumstances of each case, as and when such determination becomes necessary.
In the landmark case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., the Supreme Court opined on the applicability of the theory of ‘notional extension’ of the employer’s premises. It was held that the theory of notional extension was applicable to an employer’s premises so as to include an area which the workman passes and re-passes in going to and in leaving the actual place of work. The Supreme Court also clearly set out that the scope of such extension of workplace would have to be determined in the facts and circumstances of each case. However, it can be reasonably concluded that an employer’s premises were not restricted to the strict perimeters of the office space and could be extended beyond such physical territory.

In the case of Saurabh Kumar Mallick v Comptroller and Auditor General of India and Anr, the Delhi High Court stated that a narrow and pedantic approach cannot be taken in defining the term ‘work place’ by confining the meaning to the commonly understood expression “office” that is a place where any person of the public could have access. Therefore, each incident of sexual harassment at the work place has to be considered in the facts and circumstances of that particular case and the definition of workplace cannot be generalized to include all residences within the meaning and ambit of work place, at it may lead to absurdity. Further, the test laid down to determine a particular place is work place or not (by the Tribunal in this case), is the proximity from the place of work, control of management over such place/residence where working woman is residing; and such a ‘residence’ has to be an extension or contiguous part of working place. At the same time, for proceeding against an employee in a departmental inquiry, a sweeping definition of ‘work place’ is not necessary where it is interpreted to include the conduct of an employee which would have no relation to work and private disputes are not to be included.
Similarly, in its decision in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpu University, when the issue of the scope of workplace arose, the Bombay High Court deemed it necessary to interpret the scope of workplace to be beyond the literal physical workplace. In this background, it was held that the mode an manner in which the basic concepts are exploited by it, leave no manner of doubt that the design of the Parliament is to provide safety and security to women at all workplaces. When the intention of the Parliament is very clear, it  becomes even more evident that the definition of workplace under the Act is inclusive and again deliberately kept wide to ensure that any area where women  may be subjected to sexual harassment is not left unattended or unprovoked for.

Dwelling Place As Workplace: Cyber Legislation

workplace safety

The term “dwelling place or house” in a sense relating only to domestic help/servants would be narrow and restrictive and needs to be avoided so as to ensure equity. The dynamic approach herein would be to broaden the scope of the definition of ‘workplace’ to ensure inclusion of telework and afford protection from any form of unwanted sexual advances in cyberspace. This would be in line with the object and purpose behind this piece of legislation of protecting the interests of women at the workplace from any form of sexual harassment and providing swift and efficient justice. The POSH Act does not define dwelling place in an exhaustive manner. Furthermore, it would be incorrect to assume that the protection of law under the Act only extends to such employees within the physical workspace, as has already been established above. It would therefore only be appropriate to say here that all acts of sexual harassment against a woman that take place during the ordinary course of business, irrespective of whether the act happens in a physical or a digital workspace, is protected against and covered under the POSH Act.
Since such an act happens in a cyber space, i.e. on an electronic platform, an added layer of protection of the Information Technology Act, 2000 [“IT Act”] is also extended in this regard.  Section 67 of the IT Act prescribes punitive measures for publishing and/or transmitting obscene content on an electronic platform. Section 67A stipulates punishment for publishing or transmitting material containing any sexually explicit act, in an electronic form. Such cases of online harassment can also attract penal provisions of Sections 354A, 354D or 509 of the Indian Penal Code, 1860. These prescribe punishment for a perpetrator who sexually harasses a woman by stalking her on internet, and through his words or act or gesture intends to insult the modesty of a woman. The only lacunae that exist in the protection granted by law is the dismal reporting rate with regard to such crimes due to the stigma attached to it. If a case of cyber harassment does not even get reported on the online platform, then legal proceedings cannot be initiated and therefore the protection extended by law cannot be availed by the aggrieved woman. This needs an overhaul so as to ensure preservation of the victim’s anonymity which would consequently lead to an increase in the number of reported cases and serving justice efficiently.

SHe-Box

This Sexual Harassment electronic Box (SHe-Box) is an effort of GoI to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment. Any woman facing sexual harassment at workplace can register their complaint through this portal. Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter.

 

she box:

For Registering Complaints Related to Sexual Harassment at Workplace

For registering complaints through the SHe-Box, a valid email id is required. The registration of complaint through SHe-Box is very easy. To register complaint, please click on the tab Register Your Complaint as shown on the screen. The next screen will ask information about the nature of office where alleged act(s) of sexual harassment took place (Government/Private); choosing the right tab will open a complaint registration form. After filling all the necessary details, kindly click on the submit tab for its submission. Once the complaint is submitted, a confirmation message, is sent to your email id (mentioned in the complaint form) containing a link through which you can use your email id as userid for the account created on SHe-Box and ,generate a password to view the status of the complaint from time to time. For details regarding registration process, kindly read the User Manual uploaded on the website.

 

Repository of Resources on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Resources Section of the SHe-Box contain detailed information on the issue of sexual harassment of women at workplace. It contains the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 along with Rules framed thereunder both in Hindi and English language. The repository also features a Handbook which provides information about the SH Act in an easy to use practical manner along with a training module to build capacity of government officials around the provisions of the SH Act. This module could be customised by the private organisations as per their extant service rules. Further, for government officials the repository contains all the advisories/OM/guidelines issues by Department of Personnel and Training (DoPT). All these documents could be viewed online or downloaded free of cost. The repository also contains videos on the issue which could be utilised for building awareness around the POSH Act.

Preventing Virtual Harassment:    

The responsibility for any instance of virtual harassment always lies on the perpetrator and not the victim. When considering how to reduce rates of digital violence, firstly, it is important to identify risk factors for sexual harassment and find ways of stopping violence before it happens, and to make sure that victims have the support and resources they need to report abusers before they can strike again onto them.

All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced.
The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Extra care should be given to note and observe the conduct of every employee to note any out of the ordinary behavior or sudden lack of interest in the work or interaction with other co-workers.
The company also has to maintain an open-door policy regarding any grievances and complaints.  The confidentiality of the victim statements and evidence collected should be maintained at all times. All  statements can be signed off virtually. All evidence can be collated and filed using an online medium. The IC should be involved from the initial stage.

Preventing Virtual Harassment:

Suggestions:

So with the concept of virtual offices and work from home taking precedence in light of the workplace and with the aid of applications like Zoom, Microsoft Teams and Skype etc, working in physical spaces and proximity has taken a backseat. This raises the question of whether our homes or virtual reality space qualifies the test to be recognized as a ‘workplace’ keeping in mind the spirit of the Act. Our understanding is that any act of sexual harassment affected virtually in a home working space can be included in the notional definition of a ‘workplace’. The definition of workplace under the Act, itself envisages the concept of notional extension, and such legislative intent has also expressly been recognized by the Courts. In the virtual world, there is a thin line between such harassment that may occur in the course of work or employment and that which may be perceived as harassment while operating outside the physical workplace. Having said that, the scrutiny of facts and circumstances of any complaint arising in case of employees who are working from home would be necessary to determine whether or not such complaint falls under the purview of the Act, keeping in mind the dynamic scope of ‘workplace’. Therefore it is prima facie obligation of offices to prevent and protect the employees from all forms of harassment and discrimination is the duty of the Companies.

Conclusion

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 for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her. However, there are dimensions of workplace conduct and safety that are equally important. With a large percentage of the urban working population, now the era of working from home employers have thin lines between the home and the workplace — obscuring an important element of professional and safe workplaces and leading to newer dimensions around workplace harassment.

Having stated so, the onus on monitoring and reporting the said discriminatory/harassing behaviour lies with the employee who is a victim and also the co-workers. All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced. The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Any act, statement, action that puts a co-worker in an uncomfortable position particularly because of her gender, familial obligations amongst others would constitute as discrimination. Extra care should be given to note and observe the conduct of every employee to note any out of the ordinary behaviour or sudden lack of interest in the work or interaction with other co-workers.

The company also has to maintain an open-door policy regarding any grievances and complaints. All the protocols that were followed and observed during the regular working days in the office space should be followed during the WFH scenario too. All employees should be encouraged to approach the HR/IC in the event of any untoward incidents. There should not be any deviance from the standard operation procedures that would have been followed in the event of any complaint/grievance that would have been raised in similar
circumstances when the offices would have been functioning before the WFH became a new normal. 

In the case a complaint has been brought to the attention of the HR/IC, online interviews can be conducted.  The confidentiality of the victim statements and evidence collected should be maintained at all times. All statements can be signed off virtually. All evidence can be collated and filed using an online medium. All process(s) that would be followed should be followed without any lacunae or in any manner that would adversely affect the victim’s case. Both the parties should be given a fair and unbiased forum to present their case. The IC should be involved from the initial stage.

All women employees also have recourse to file a complaint through She-Box. It is an effort by the Government of India to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment under the Act. Once a complaint is submitted to the ‘She-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter. More information can be found athttp://www.shebox.nic.in/user/about_shebox. 

To sum it up, the HR/IC should communicate clear and distinct policies, rules and regulations against harassment and discriminatory behaviour. These kinds of behaviour should be clearly termed as prohibitory behaviour. The virtual workspace should be a safe workspace for the employees.  The assumption that an employee working out of their homes are in a safe space would be an erroneous one. The role of the IC/HR shouldn’t just be for redressal but also preventive. A constant re-affirmation of the company’s policies on harassment should be sent across to all employees and a no tolerance stand should be taken. An awareness and sensitisation guidance session or webinar should be conducted with all employees concerned. Protection of employees from all forms of harassment and discrimination is the duty of the Companies.