INTRODUCTION
With the advent of the unprecedented novel coronavirus, normal lifestyle has taken a backseat and virtual reality has become the new normal. The current situation, which calls for worldwide lockdowns, has led to uncertainty within the business sector. Companies grappled with the situation for a very long time until they decided to engage their employees in work virtually. Work from home came to be accepted by large section of society within no time. A recent Gartner poll reveals that 91 per cent of HR leaders have implemented work-from-home since the outbreak of the Covid-19 .
Even after the paradigm shift to the new normal, the struggles of a workplace remained the same. One of the major challenges faced is the sexual harassment of women at workplace which remained constant. According to a joint survey by Southeast Asia, Freedom of Expression Network (SafeNet), and Never Okay Project, it was found that 86 of 315 respondents claimed they were sexually harassed while working from home. Such acts brings nothing but fear and disgrace to the women. Workplace, which is expected to protect the individuals from any unwanted environment, has damaged the very existence of security of women. Virtual harassment can be construed as offensive remarks and overtones during video calls, sexual advances through various online portals, calls after office hours, undefined work hours, non-consensual image sharing, lewd calls and messages, advancing personal questions from the employees, inappropriate comments or jokes, along with other offensive acts. These problems are emerging time and again which have to be cautiously tackled with.
The Prohibition of Sexual Harassment Act 2013 (or POSH) was one such act that was implemented to protect the women from harassment at workplace and ensure safe work environment with inclusive working spaces. Sexual harassment, as defined in the POSH Act is ‘any unwelcome, sexually determined physical, verbal, or non-verbal conduct’. The question which arises forming the basis of the article is that, whether POSH Act apply on work from home environment or strictly adheres itself to the physical workspace only? Having said that it is essential to delve into the intricacies of the act by examining the scope and extent of its applicability.
VIRTUAL SEXUAL HARRASMENT
The POSH Act 2013 was enacted with the intention to provide protection to women against sexual harassment at their workplace and provide a mechanism for redressal of complaints of sexual harassment. As far as inclusion of virtual sexual harassment is concerned, the legislation is not exhaustive on the same. Section 3 of the act states that “no women shall be subjected to sexual harassment at any workplace”. In order to examine the scope and applicability, the term workplace has to be scrutinised strictly.
Section 2(o) of POSH Act 2013 defines the term ‘workplace’. Specifically considering the area under which virtual sexual harassment can be covered, section 2(o)(v) and (vi) has to be construed liberally and not in a restrictive manner. These section states that “any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey and a dwelling place or a house” will be covered under the term ‘workplace’. The definition stated is inclusive and not exhaustive in nature. Courts time and again have applied the principle of “notional extension” in order to interpret the beneficial and benevolent legislation which intended to extend the protection of women at workplace.
INTERPRETATION OF WORKPLACE WITH REGARDS TO NOTIONAL EXTENSION
The concept of notional extension has been undertaken by courts to interpret laws governing compensation to be awarded to employees or workmen in case they sustain injuries during the course of their employment. It is pertinent to note that courts have ensured that beneficial legislation such as POSH Act, should be construed liberally to the notional extension and the term ‘workplace’ under POSH Act has been given wide interpretation by the courts.
Both employment laws and POSH Act have established a prerequisite, that the incident must take place “in” or “out” of the employment. Therefore, the court needs to analyse the possible causal relationship between the incident and the employment to make the respective employer guilty of the act. For determining such relationship, the court is bound to define the scope of workplace for the purpose of understanding the said relationship.
There are several landmark case whereby the court has interpreted the concept of notional extension. In the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors. , Supreme Court observed 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 court further stated that the extension of workplace has to be defined according to the facts and circumstances of each case. At last the court attempted to conclude that the premise’ of the employer is not limited to the physical boundaries of the office place but can be extended beyond such perimeter.
In another case of Saurabh Kumar Mallick v Comptroller and Auditor General of India and Anr , the court highlighted the need to consider the development in technology in sexual harassment arena. According to the court, the office has become elementary in nature and provided its employees the comfort of working from home. This has made the offender of sexual harassment to get away with punishment by simply stating that he had not committed the offence at ‘workplace’. The court clarified that a narrow and pedantic approach while defining the scope of ‘workplace’ should not be followed. Rather the definition should be liberal and not be restricted to the physical office as understood commonly by people.
In the words of the court “It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and advancement of information technology. A person can interact or do business conference with other person while sitting in some other country by means of video-conferencing…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 court upheld that even though the scope of workplace will depend upon the facts and circumstances of the case and no straight jacket definition could be approved as such yet there was a need to lay down certain tests to determine as to what van include workplace. These are as follows:
1. Proximity from the place of work;
2. Control of management over such place/residence where working woman is residing; and
3. Such residence has to be an extension or contiguous part of working place.
In the case of Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University the Bombay High Court attempted to study the intention of the parliament while making the POSH Act. The court interpreted that the definition of workplace should be inclusive and non-exhaustive since the parliament’s intention to protect women from all kinds of sexual harassment left the legislation wide open for further interpretation.
Similarly, in the case of Ayesha Khatun vs. The State of West Bengal and Ors. , the Calcutta High Court while considering the Vishakha guidelines, stated that even though the definition of ‘workplace’ has not been included in the guidelines, yet the term should be given a wider meaning in order to fulfil the intention of the said guidelines and to serve protection to women in all aspects.
In the most recent case of Sanjeev Mishra vs. Bank of Baroda , the Rajasthan High Court endeavoured to include online harassment within the ambit of workplace harassment. In the present case, the court upheld that even though the workplace of employee working in a bank may shift, yet it will be considered the same workplace on an online platform regardless of where the culprit is situated. The court contemplated the ongoing pandemic and the growing importance for work from home model and stated that women who are finding themselves vulnerable to online sexual harassment needs to be protected.
PREVENTING VIRTUAL SEXUAL HARASSMENT
The ongoing pandemic has made us all vulnerable to undergo paradigm shift from physical offices to virtual workplaces. With this shift, the laws for protecting the women from sexual harassment through online medium should be formulated. Various steps have been undertaken by the government of India to curtail the acts of sexual harassment against women. Some of them are:
1. Sexual Harassment Electronic Box or “She-Box” was introduced by the Ministry of Women and Child Development on an online platform. It provides the women victims the opportunity to register their complaints of sexual harassment. Working women, whether in organised or unorganised sector, have the facility to this redressal mechanism and can file the complaint of instances where they have faced sexual harassment at their workplace. This complaint will be further forwarded to the concerned authority who would have the jurisdiction to take action in such cases.
2. Apart from POSH Act, there are other acts which provide women with protection against such offences. Since the virtual sexual harassment is conducted in cyber space thereby IT Act is attracted for the same. Section 67 and 67A of the act stipulates punitive measures for publishing any sexually explicit content on an electronic platform.
Barring the above mentioned steps taken by the government to curtail sexual harassment at workplaces, the company, no matter dealing in which business, should ensure safety of its employees by propagandizing their efforts. The need of the hour is that the employer become more responsive towards these challenges and spread awareness about the same among his staff members. Some of the steps which can be undertaken by the employer can be:
1. First and foremost, the company should adopt open door policy whereby the company should take the initiative to hear all the complaints of the employees regarding the unethical behaviour of co-workers. Having said that, the company should maintain secrecy and confidentiality while handling such cases. IC should be involved from the first stage of investigation itself.
2. The company should check and monitor all the online communication which takes place through meetings, telecommunication including chats etc. behaviour of all the employees should be considered as well.
3. HR/IC should formulate clear guidelines or rules regarding the conduct of employees in order to prevent any kind of offence with women. These rules should be strictly adhered to and defaulters should be made answerable and if found guilty, strict action should be taken against them.
4. Regular webinars and sessions should be conducted by the employer to ensure that every employee is aware about the protection scheme granted by the company. Apart from that the company should encourage the female counterparts to confront the respective authorities within the organisation about any such incident. The company can also undertake other measures like, providing the women co-worker with option to not switch on their videos while in a meeting and can access to the ‘audio only’ option instead. The official work should only be discussed on official chat groups and not through personal chats. Apart from that defined working hours should be devised by the company.
CONCLUSION
In the era of virtual reality, where development has taken the front seat, the challenges to ensure security has also escalated. Thus, there is a dire need to enhance the scope of laws as well. One such law i.e. POSH Act has been liberally construed by the court thereby broadening the applicability of the legislation. The legislation has included within its ambit, the offence of sexual harassment taking place on an online platform. The dynamics of the term ‘workplace’ have been changed to be more inclusive in nature rather than restricting itself to the old-fashioned definition. Such interpretation has provided new horizon to workplace harassment and different dimensions to safer workplaces.
The concept of notional extension has been undertaken by courts to interpret laws governing compensation to be awarded to employees or workmen in case they sustain injuries during the course of their employment. It is pertinent to note that courts have ensured that beneficial legislation, such as POSH Act, should be construed liberally to the notional extension and the term ‘workplace’ under POSH Act has been given wide interpretation by the courts. Both employment laws and POSH Act have established a prerequisite, that the incident must take place “in” or “out” of the employment. Therefore, the court needs to analyse the possible causal relationship between the incident and the employment to make the respective employer guilty of the act.