November 27, 2020
The last three months have witnessed many of us easing into a new way of working. ‘Work from Home’, or simply the abbreviated form, ‘WFH’, has now become commonplace. With ‘WFH’ amidst the COVID-19 pandemic becoming a part of the so called ‘new normal’, employees across the world are now waking up to spending a considerable part of their day on virtual platforms, with their colleagues and others that they would engage with in relation to their daily work routine. While India is presently in the process of reverting to normality, and going through the phases of ‘Unlock’, the Government is still encouraging private sector employees to continue working from home, where possible, to prevent the spread of the coronavirus. Companies have also taken it upon themselves to mandate that employees should work from home, as far as possible and for the foreseeable future.
As the WFH culture evolves, there have been concerns primarily in relation to privacy, data protection, cybercrime, etc. The one menace that, however, exists and which is not being discussed, at the level that it should be, is the ‘sexual harassment’ of women employees. While employers and employees are aware of the law that protects ‘women employees’ while they are at their physical workplaces, there is concern about how the law will protect such employees while they work at home and what virtual ‘sexual harassment’ would be.
The very name of the law, in India, i.e., The Sexual Harassment of ‘Women’ at ‘Workplace’ (Prevention, Prohibition and Redressal) Act, 2013, which deals with the prevention of sexual harassment, refers to the act being committed at a ‘workplace’. The question that therefore arises is as to what constitutes a ‘workplace’, and whether the Act extends to acts of sexual harassment being committed ‘virtually’, while an employee is fulfilling her work related obligations from her home. The meaning given to the term workplace in the Act is wide and while the initial understanding would be that a workplace is the physical office premises where an employee fulfils her work related obligations, it must be remembered that the intention of the Act is to prevent women from facing sexual harassment while interacting with her colleagues in relation to her work. The definition of the term workplace, in terms of the Act, takes into consideration the places visited by an employee during the course of her employment, and has created the ‘extended workplace’. Accordingly, can the home therefore be looked at as an ‘extended workplace’ and would any harassment, being sexual in nature, suffered by an employee thereat fall within the ambit of the Act?
Keeping in mind the intention of the legislation, it could be viewed that the home, for the limited purposes of the Act, could be viewed as an ‘extended workplace’ and sexual harassment of an employee, while she is carrying out her work related obligations from her home, could fall within the ambit of the Act.
The current situation is an unprecedented one and no one imagined that one would be required to work from home for extended periods of time. The law therefore should be interpreted keeping in mind its intention, however, without expanding the scope to such an extent that would render the same nonsensical.
One should, however, remember that the Act is tailor made to situations where the obligations and responsibilities of the employer, the alleged harassed woman and the alleged harasser are to be undertaken physically, and not virtually. For example, the alleged harassed woman is required to provide 6 (six) copies of her complaint for the reasons set out in the Act. This may not be possible in the current situation and workplaces, particularly the Internal Complaints Committees, must ensure that the Act is read and interpreted very carefully, such that all of the required obligations are properly undertaken, keeping in mind the spirit and intention of the Act.
Further, it is to be noted that the law, in India, dealing with the prevention of sexual harassment at a workplace is restricted to the protection of ‘women’ at the workplace. The principles of the Act have, however, been adopted by various organisations in India, in their anti-harassment policies, to make such policies gender neutral and ensure the protection of all employees. Page 2 of 2
The changing times require employers to revisit their anti-harassment policies and ascertain as to whether modifications are required to be made to them to ensure that the employees, both men and women, are protected, while they work from home. It is the responsibility of the organisations to build a stringent model for the reporting and handling of such cases. In addition, and more importantly, employees should be sensitised to the current situation and educated on the various aspects of such anti-harassment policies and its applicability to them.
– Janini Somiah (janini@duaassociates.com) and Yashu Bansal (yashu@duaassociates.com)
Janini Somiah is a partner at Dua Associates and Yashu Bansal is an Associate at Dua Associates.
