What is a Workplace under the PoSH Act?

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, more commonly known as the PoSH Act, came into force on December 9, 2013. The Act was implemented to fill the gaps left by the Vishakha Guidelines and to enhance them.

The importance of broadening the scope of a ‘workplace’ has been emphasized by the courts even before the Act came into existence.

The Calcutta High Court, in Ayesha Khatun v. the State of West Bengal & Ors., stated that to properly execute the purpose of the Vishakha Guidelines, the expression ‘workplace’ must be given a logical meaning.

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What is a workplace under the PoSH Act?

Section 2(o) of the PoSH Act defines a workplace as follows:

• “any department, organisation, 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 a co-operative society;

• any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

• hospitals or nursing homes;

• any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

• any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;

• a dwelling place or a house.”

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Unorganized Sector

The unorganized sector is defined as a workplace under Section 2(p) of the PoSH Act, 2013. It means an enterprise owned by either individuals or self-employed workers and engaged in the production, sale of goods, or providing service of any kind. 
The number of workers employed by such an enterprise must be less than ten. In other words, according to the PoSH Act, any workplace with less than ten employees falls within the ambit of the unorganized sector.

The Local Committee and the Unorganized Sector

Since the unorganized sector, unlike a private organization, does not constitute the Internal Committee (IC), Section 7 of the PoSH Act provides for the redressal of sexual harassment complaints in the unorganised sector 

Section 7 lays down relevant provisions, such as the constitution and tenure, of the Local Committee (LC). It is a committee formed on the district level and has powers equivalent to that of a civil court. 

It is constituted by the District Officer (who is a District Magistrate, Additional District Magistrate, Collector, or Deputy Collector). It has the power to receive sexual harassment complaints from workplaces that have less than ten employees or against the employers.

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Domestic Workers

According to Section 2(o)(vi) of the PoSH Act, ‘dwelling place or a house’ is also covered under the definition of workplace. It refers to house helpers and domestic workers who are employed in such dwelling place or house.

Domestic workers are quite vulnerable and face physical, verbal, non-verbal, and visual forms of sexual harassment at the workplace. These may include:

• Touching, groping, or fondling without consent;

• Rape;

• Lewd remarks, sexist jokes, demanding sexual favours, and compliments of sexual nature;

• Lewd or suggestive gesturing, winking, leering, and staring inappropriately.

A domestic worker is vulnerable to sexual harassment from not just the person who employed her, but any other person who lives in such dwelling place or house or visits them when she is present there.

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Virtual Workplace

The COVID-19 pandemic brought us the new normal of working from home and introduced workplaces. Virtual workplaces have greatly benefitted companies and industries. The magnitude of the virtual platform has increased over the past two years due to the COVID-19 pandemic.

The question that has often come up in the past few years is whether a virtual workplace is covered under the definition of a workplace for the purpose of the PoSH Act? While virtual workplaces are not exclusively mentioned in the Act, reliance must be placed on a broad interpretation of the definition and judicial precedents.

In Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Delhi High Court observed that the workplace, as defined in the Vishakha Guidelines, cannot be interpreted in literal terms. With the scope of internet and technology rapidly increasing, it is significant to interpret the term workplace widely to prevent sexual harassment in unusual workplaces.

In Sanjeev Mishra v. Disciplinary Authority and General Manager, Bank Of Baroda & Ors., the Rajasthan High Court held that in a workplace setting on a digital platform, two employees cannot be said to be working from separate workplaces even if they are in separate geographical locations.

Online Communication

The pandemic and the work from home situation have also increased online communication between employees. Therefore, it is also significant to determine if the communication of sexual nature between employees is sexual harassment in the workplace.

For instance, if your employer or a colleague sends you a sexually coloured or derogatory message or mail, will it be considered sexual harassment at the workplace, even if the interaction took place online? 

In Jahid Ali v. Union of India, the Delhi High Court held that an employee is liable to be dismissed if he had sent messages of underlying sexual nature to a superior female officer.

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Extended Workplace

The concept of an extended workplace is also incorporated into the definition of the workplace. Extended workplace includes:

• any place visited by the employee arising out of or during the course of their employment and

• transportation provided by the employer.  

Since its inception, this has been subjected to judicial interpretations, with courts employing the doctrine of 'notional extension' when interpreting legislation governing compensation to be paid to employees or workers who are injured while on the job.

In today's environment, with an increasing number of women working, stricter enforcement of the provisions of the PoSH Act is critical. For many working professionals, virtual workspaces are becoming an inevitable tool. 

Employers are required by law to provide a safe working environment for their employees, and with the new normal of digital workspaces, and other unconventional workplaces, these responsibilities should undoubtedly go beyond the literal interpretation of workplaces.