The COVID-19 pandemic has upended our definition of “normal”. One of the most significant changes has been the way we perceive our workplace. Organisations have been forced to operate remotely, with platforms like Zoom, Meet and Teams becoming the new meeting rooms.
Recognizing the benefits of a remote workplace, such as reduction in overhead costs, organisations like TCS and Twitter have announced their intention to make this change permanent.
While the world has been busy in understanding the technical elements behind creating an effective remote working environment, work from home has also posed its own predicaments. The virtual workspace has resulted in complaints arising on account of inappropriate workplace conduct, demonstrating that the virtual workplace is no safer than the brick and mortar one.
As we embrace this new reality, it becomes imperative to understand the workings of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) in a work from home set up and the flexibility that this law provides to include and address the new issues raised.
The dynamic “workplace”
In a work from home setting, the home is accorded the status of a workplace and virtual platforms have become an extension of such a workplace. Accordingly, it is essential to outline the scope of a workplace and the interpretation accorded to it under Indian law. The POSH Act defines the workplace in an inclusive and non-exhaustive manner to include within its ambit any place visited by the employee in the course of employment, including a dwelling place or a house. Therefore, it can be reasonably assumed and construed that the employee’s own home would be included within the ambit of a workplace.
While the definition of a workplace under the POSH Act may extend to a home, it would also have to be notionally extended and understood to include the new form of workplaces created by virtual platforms.
A narrow and pedantic approach cannot be taken in defining the term workplace by confining the meaning to the commonly understood expression “office” or even the usual interpretation of “home”. In the current work from home scenario, the use of internet and information technology finds prominence, with a person interacting and conducting work remotely. Therefore, with offices being run from individual residences, the perpetrator of sexual harassment cannot get away on account of technical interpretations. In fact, this view has been reiterated in Saurabh Kumar Mallick v. Comptroller & Auditor General of India where the Delhi High Court has held that if a person conducting work through video conferencing indulges in an act of sexual harassment with an employee, it cannot be open for him to say that he had not committed the act at a ‘workplace’.
Sexual harassment beyond its physical nature
Sexual harassment in the virtual workspace, though different from the in-office scenario, is peppered with similarities. Employees may have achieved a safe haven from physical sexual harassment, but the same will now manifest in communication.
The proliferation of sexual harassment in the virtual workplace can thus operate through unwelcome sexual advances, and verbal conduct with sexual overtones, whether directly or by implication. This would particularly apply when submission to or rejection of such a conduct by the employee would affect the employment of such employee, thus creating an intimidating or hostile working environment.
As with the definition of workplace, the POSH Act has interpreted sexual harassment in a non-exhaustive manner to include express or implied unwelcome behaviour, sexually coloured remarks, showing pornography or any other kind of verbal or non-verbal conduct of sexual nature.
Therefore, acts like indulging in sexual innuendos and abusive and intimidating conduct would have to be understood within the purview of sexual harassment. Some of the commonplace incidents that could be considered sexual harassment in the work from home scenario would include video calls and conferences at odd hours, inappropriately dressed colleagues during virtual meetings or intentionally or unintentionally passing inappropriate comments during calls or in messages. Even messages that contain sexual overtones are to be considered a violation of decency, respect and dignity and thus would amount to sexual harassment.
The employer’s intervention
Work from home has become a reality because of technological advancements which has made the proximity in separation a paradox in reality. However, this paradox has also become a catalyst for cases of inappropriate behaviour in the virtual environment. Online platforms provide a sense of distance and notional anonymity to the perpetrator, thus giving them more room to hide as they partake in advancing inappropriate comments and conduct.
Thus, as the workplace becomes more dynamic, a similar dynamic change is required in the policies of organisations. Strict norms of collegial conduct should be adopted to ensure that an office-like decorum is maintained even in virtual workspaces, and communication between employees prescribes to certain norms.
The management of the organisation, accordingly, should conduct specific trainings for necessary employee sensitisation and also to apprise the employees of the redressal mechanism in case of any instance of sexual harassment in the virtual environment. A review of the organisation’s sexual harassment policy may also be necessary, given the changed dynamics of a home office.
The conception that workplace is only defined by brick and mortar has become passé and even though the perception of workplace continues to change and evolve, sexual harassment at such workplace continues to be the unfortunate constant.
In our new dynamic workplace, the conception that workplace norms do not extend beyond the walls of the workplace do not hold relevance. The workplace may have changed but workplace fundamentals must remain the same. A safe working environment is now, more than ever, the need of the hour.