EXTENSION DEFINITION OF WORKPLACE -POSH ACT

The definition of workplace in the POSH Act in India has been amended several times since the act was first passed in 2013. the latest amendment which was passed in 2019, has expanded the definition of workplace to include any place where an employee is required to work, whether it is on the employer’s premises or not. This includes places such as clients offices, hotels and even public places where employees are required to travel for work.

In this dynamic age of uncertainty and the society where the working class, especially working women, facing harassment in the workplace is considered a pressing issue but nothing abnormal, it is critical for POSH law to mold itself not ethically but responsibly so as to cope with the contemporary world and challenge the pre-conceived notions of the society.

Further in the article, we shall elaborate on the definition of the workplace in POSH cases and how it is interpreted.

LEGAL DEFINITION OF WORKPLACE AS PER POSH:-

The workplace is defined in section 2(o) of the POSH Act. This definition has ensured that there would not be an iota of doubt to ensure that everyone is familiar with what a workplace constitutes.

Section 2(o) workplace includes

1. Any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled, or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or co-operative society is considered a workplace.
2. Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit, or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services, or financial activities including production, supply, sale, distribution or service is a workplace.
3. Hospitals or nursing homes are workplaces.
4. Any sports institute, stadium, sports complex, or competition or games venue, whether residential or not, used for training, sports, or other related activities comes under a workplace.
5. Any place visited by the employee during employment for working or recreational purposes, including transportation by the employer for undertaking such a journey, is a workplace.
6. Dwelling place or a house from where the employee works is a workplace.

Under Section 2(o)(vi) of the POSH Act, the definition of a workplace includes “dwelling place or a house,” which encompasses the employment of domestic workers in such settings. Domestic workers are particularly vulnerable to various forms of sexual harassment, including physical, verbal, non-verbal, and visual misconduct. 

This may involve unwelcome touching, rape, lewd remarks, sexist jokes, demands for sexual favors, compliments of a sexual nature, suggestive gestures, and inappropriate staring. Not only the person employing the domestic worker but also any individual residing in or visiting the dwelling place can subject the domestic worker to sexual harassment.

Any sexual harassment an employee faces at the workplace can be reported to the POSH committee.

The most important part of this definition in section 2(O)(v) says that any place visited by the employee arising out of or during employment, including transportation by the employer for undertaking such journey, is a workplace. “Arising out of or during employment” means any act of sexual harassment which takes place:

1. Inside the place of work,
2. Outside the place pf work during the course of employment
3. during the commute to and from the place of work.

To explain this further, let us consider this example.

A teacher working with a school goes to Faridabad to attend a Seminar on behalf of her office located in Hisar. A participant there misbehaved with her, and she faced sexual harassment. So the question arises whether she is allowed to complain to the POSH committee and the employer would investigate this matter or not?

The answer is yes. Both legally and ethically, the employer is liable to initiate an investigation. An employer should ensure that employees work in a safe and healthy environment without being subjected to harassment or hostility. This principle even applies if an employee is subjected to racial or sexual slurs when working from home.

The few more situations that clear the definition of workplace are as under:-

• Two colleagues went to a pub during post office hours to liaison with a client, and a harassment incident happened with the client. Should POSH Committee handle this harassment as it is outside office premises?
• A group of colleagues went on a trip to a hill station (Unofficial) over a long weekend, and something untoward happened between them during the time. Should POSH Committee handle this?
• While working from home, I was asked some unwelcome questions by my manager. Will my home be considered a workplace?
• Priyanka stayed in a hotel while on an official trip, and the staff working there misbehaved with Priyanka. Can Priyanka report this harassment to the POSH Committee as it did not happen on her office premises which are usually considered her workplace?
• Nishita travelled from Goa to the Bombay office. In the Bombay office, she faced harassment by a colleague. can she file a complaint under Posh Act ?

The above mentioned situations are questioning the jurisdiction of the POSH Act and the important question arises here is “whether the Internal committee should take up such cases or not “?

The answer of this question is absolutely yes. Because it is the duty of the employer to provide the safe and healthy environment to the employees and it is the duty of the ICC also to see and deal with the complaint in a broad manner so the justice can be done with the complainant.

CASE LAW- SILAJIT GUHA VERSUS SIKKIM UNIVERSITY AND OTHERS

In this case, the petitioner was a Mass Communication professor at the Sikkim University who filed a writ petition challenging the show cause notice dated 10.06.2019 and the consequent termination order of 28.06.2019 on account of a sexual assault lawsuit filed against him by a student of the department.

He pleaded to the single bench led by Hon’ble Justice Bhaskar Raj Pradhan that in this particular case, the definition of workplace mentioned under section 2(o) could not be held as in this alleged incident, the place where this incident took place cannot be called a ‘workplace’.

Petitioner claims the POSH Internal Complaints Committee lacked jurisdiction to hear the complaint because the alleged incident of sexual harassment allegedly occurred at a hotel during a marriage function, which would not fall under the definition of ‘workplace’ under current law. After all, the applicant and complainant went there not arising out of or during employment. The respondent’s advocate stated that under section 2(o)(v), any place visited by the employee arising out of or during including transportation provided by the employer for undertaking such journey would be considered a workplace, and the harassment complaints occurring thus can be handled by the POSH committee. In his argument, he also relied upon the judgment of Gaurav Aseem Avtej vs. Uttar Pradesh State Sugar Corporation Limited and Others. It was submitted that a statute is best interpreted when we know why it was enacted, and therefore, the definition of the workplace under the POSH Act 2013, ought to be interpreted not to defeat the very purpose of its enactment.

In further proceedings, it was held that the definition of the workplace is inclusive rather than exclusive. And the writ petition was disposed accordingly.

The Rise of Virtual Workplaces

The COVID-19 pandemic has popularized remote work and virtual workplaces, leading to an increased reliance on digital platforms. However, the question arises as to whether virtual workplaces fall within the definition of a workplace under POSH Act. While the Act does not explicitly mention virtual workplaces, a broader interpretation of the definition and judicial precedents support their inclusion.

Court Interpretations and Online Communication:-

In Saurabh Kumar Mallik vs. Comptroller & Auditor General of India, the Delhi High Court stated that the workplace under POSH Act should be interpreted broadly to encompass emerging forms of work and prevent sexual harassment in unconventional workplaces. 

Similarly, in Sanjeev Mishra Vs. Disciplinary Authority and General Manager, Bank of Baroda & Ors, the Rajasthan High Court ruled that separate geographical locations do not necessarily constitute different workplaces in a digital workplace setting.

Considering the increased online communication between employees during the pandemic, it is crucial to determine whether sexually colored or derogatory messages or emails exchanged online constitute sexual harassment in the workplace. In Jahid Ali vs. Union Of India, the Delhi High Court held that an employee can be dismissed for sending messages of a sexual nature to a female superior officer.

The Concept of Extended Workplace:-

The POSH Act recognizes the concept of an extended workplace, which includes places visited by employees during the course of their employment and transportation provided by the employer. Judicial interpretations of this concept employ the doctrine of ‘notional extension’ to ensure compensation for employees or workers injured on the job. the definition of workplace has been extended by the POSH Rules, 2013 to include the following:

1. Any place visited by a women in connection with her employment, including her place of residence if she is required to stay there in connection with employment,
2. Any place where a women is invited or required to be present by her employer or any person acting on behalf of her employer,
3. Any public place where a women is subjected to sexual harassment by any person in connection with her employment.

CONCLUSION

The case of Silajit Guha is an example amongst several other suits that the definition of workplace is not limited to offices but is more inclusive, and it doesn’t restrict itself to pre-conceived notions of the working or non-working class or society. And for all five scenarios mentioned at the beginning of this article, it falls under the jurisdiction of the POSH committee to handle the harassment complaints as it is evident that a workplace is defined as arising out of or during employment with a clear emphasis on the word ‘or’.

A workplace under POSH Act, 2013, is a pivotal focus of this legislation. The Act was introduced to address the limitations of the Vishakha Guidelines and provide stronger measures against sexual harassment. An essential aspect emphasized by the Act is the definition and expansion of the concept of a workplace. This recognition of diverse workplace settings is crucial in effectively combating sexual harassment and fostering safe environments for all employees.

With an increasing number of women participating in the workforce, it is crucial to enforce the provisions of the POSH Act rigorously. The Act’s scope should extend beyond traditional workplaces and encompass virtual workspaces and other non-conventional settings. 

Employers have a legal obligation to provide a safe working environment, and this responsibility applies to the new normal of digital workspaces. By understanding and applying a comprehensive interpretation of the definition of a workplace, we can effectively combat sexual harassment and create safer work environments for all.