Understanding workplace under PoSH Act

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.

HR leaders should have a clear understanding of the scope of the PoSH Act. By understanding the broad definition of a workplace and its inclusion of virtual workspaces, online communication, and the unorganized sector, HR leaders can ensure that their organizations are compliant with the Act’s provisions.

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What is a workplace under PoSH Act?

According to Section 2(o) of the PoSH Act, a workplace under PoSH Act is defined as:

1. Various types of organizations and institutions, including government-funded entities, private sector organizations, enterprises, establishments, societies, trusts, non-governmental organizations, and service providers involved in commercial, professional, vocational, educational, entertainment, industrial, health services, or financial activities
2. Hospitals, nursing homes, sports institutes, stadiums, sports complexes, and competition or game venues, whether residential or not, are used for training or sports-related activities
3. Places visited by employees during the course of employment, including transportation provided by the employer
4. Dwelling places or houses where domestic workers are employed

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Unorganized sector as a workplace under PoSH Act

The PoSH Act, under Section 2(p), extends its coverage to the unorganized sector. This sector includes enterprises owned by individuals or self-employed workers engaged in producing, selling goods, or providing services. For a workplace to be considered part of the unorganized sector, it must employ less than ten workers.

Addressing Sexual Harassment in the Unorganized Sector

Workplace under PoSH Act also covers the unorganized sector. However, unlike private organizations, the unorganized sector does not establish an Internal Committee (IC). Therefore, to address sexual harassment complaints in this sector, Section 7 of the PoSH Act introduces the concept of a Local Committee (LC) which works in the following manner:

The LC is formed at the district level and possesses powers equivalent to a civil court. It is constituted by a District Officer, such as a District Magistrate, Additional District Magistrate, Collector, or Deputy Collector.

The LC is authorized to receive sexual harassment complaints from workplaces with fewer than ten employees or against employers in the unorganized sector.

Focus on domestic workers

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.

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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 Mallick v. 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 v. 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 v. 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.

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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.

Conclusion

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.

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How can Ungender help you?

At Ungender, our team of experts supports you in implementing PoSH in your workplace. We understand that navigating PoSH compliance can be complex for workplace leaders like you. However. our experts support you every step of the way starting from the PoSH policy, awareness and training programs, external member empanelment, annual PoSH report filing, and more. To get started with your company’s PoSH compliance, get in touch with our team.