Swiggy’s policy against sexual harassment of women delivery partners lacks legal backing

Swiggy does not specifically define sexual harassment though it is aligned with the POSH Act, 2013.

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SWIGGY made headlines for extending its sexual harassment to its women delivery partners. In a blog titled 'Building a Safer Delivery Universe for Swiggy's Women Executives' dated November 16, the food ordering and delivery platform mentioned how it will extend its Policy on Sexual Harassment ('POSH') to cover harassment of women delivery partners by restaurant partners, customers, other delivery partners and Swiggy employees. The move has been hailed in light of the boom in the platform economy during the pandemic.

Why is there a particular need for POSH policies for aggregator platform workers?

As described by American lawyer Anita Hill, sexual harassment in the workplace is the abuse of power by men with greater authority over women. In the case of a service user and a platform worker, an imbalance of power exists.

1) The impact of a ratings-based system of sexual harassment

Ratings play an important role in the platform economy. Most platform aggregator apps, such as Uber, Ola, Swiggy, Zomato and Urban Company, collect ratings from users on the performance of their workers. However, there is little control over whether ratings are accurate.

Due to the lack of checks on the service provided other than user feedback, there is a direct impact of such user ratings on a worker's earnings. Hence, female platform workers who face sexual harassment fear retaliation due to the impact on ratings.

While certain platforms also allow drivers to rate their service users, the impact of such ratings is of negligible consequence compared to that of the driver.

2) Inhabiting places with less control

Platform workers, by way of the nature of their job, inhabit spaces where they have limited control over vehicles, public spaces, restaurants or homes of users, especially while working at odd hours.

Women drivers of Uber have reported sexual harassment but in the face of immediate threat, retaliation could be dangerous and not an option. Even if the car is owned by the driver, being alone in the face of an immediate threat creates an unsafe space. To de-escalate potentially dangerous situations, women even laugh off inappropriate remarks or play along.

Urban Company, a platform that accommodates at-home services, requires its workers to inhabit the house of a customer, where there is a skewed power dynamic in favour of the user. Several users have reportedly requested sexual favours and made sexual advances on Urban Company's platform workers.

There is additional fear due to the lack of support from these aggregators. While more safety mechanisms such as help buttons, black-listing and safety kits have been introduced, there have been instances of platform workers being told to "leave their stuff and run". Such mechanisms have been noted to be insufficient and platforms ensure that their non-liability in cases of sexual harassment is watertight in cases of harassment by a user.

The same is termed a dispute which is required to be resolved independently by the two parties. When a worker raises the issue with her aggregator, there is a general sense of apathy and it is dismissed as a personal matter. If Swiggy's extended policy against sexual harassment is applied effectively, this problem could be greatly alleviated.

3) Inadequate legal protection

Labour laws in India are rigid, viewing the employer-employee relationship in the context of the conventional set-up of physical workplaces. Platform workers fall under the category of independent contractors and labour laws, as per the landmark Supreme Court verdict in Hussainbhai, Calicut versus Alath Factory Thozhilali Union, Kozhikode and Ors. (1978), apply only to employees. Hence, platform workers are exposed to exploitation.

Also read: No bathrooms, no safety, no formalisation: For India's women gig-workers, companies' promises ring hollow

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('POSH Act'), is an all-encompassing law that extends protection to all women employees and requires every employer that has 10 or more employees to set up an internal complaints committee ('ICC') to redress complaints of sexual harassment at workplace.

With platform aggregators positioning themselves outside the employer-employee binary, their female workers are not protected under the Act.

The Act also makes the constitution of a local complaints committee ('LCC') at the district level mandatory. The LCC is similar to the ICC in terms of composition and redressal but its scope of redressing complaints of sexual harassment extends to women working in the unorganised sector. While this could act as a great tool in the protection of platform workers, access to the LCC is questionable given that no information can be obtained by a basic Google search.

Also read: A critical examination of  The Sexual Harassment of Women at the Workplace Act

The Indian Penal Code does not limit itself to sexual harassment at workplace. Hence, platform workers may also use this provision to file criminal complaints at the local police station against user(s). However, complicated processes and problematic attitudes of the police hinder reporting of sexual harassment, specifically by way of filing a first information report.

What does Swiggy's anti-sexual harassment policy say?

Swiggy's anti-sexual harassment policy should be analysed in view of the POSH Act, with an emphasis on Swiggy's blog post as its internal policy is not accessible.

1) Definition of sexual harassment

Sexual harassment, as per the Act, refers to one or more of the following unwelcome acts or behaviour:

i) physical contact and advances; or

ii) demand or request for sexual favours; or

iii) making sexually coloured remarks; or

iv) showing pornography; or

v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The blog does not specify a definition of sexual harassment, though it is aligned with the Act.

2) Who can report sexual harassment

The Act limits its scope to female employees and does not apply to platform workers. Since Swiggy's delivery partners fall under the ambit of platform workers, they are not covered under the Act. Swiggy's anti-sexual harassment policy has extended its scope to female delivery partners.

The addition of gig workers is a unique step among the multitude of platform aggregators who work on the same model. However, it is worth highlighting the gendered approach of Swiggy's anti-sexual harassment policy. Many organisations across India have taken a gender-neutral approach to their internal anti-sexual harassment policy. However, Swiggy limits its policy to only women.

3) Against whom can complaints of sexual harassment be filed

The blog post highlights two groups of possible perpetrators under its policy: Swiggy employees, and restaurant partners, consumers and fellow delivery partners. The scope for respondents is wide as it covers Swiggy employees as well as three important points of contact for delivery partners during working hours.

4) Process under the Policy

In the case of Swiggy employees, the complaint shall be dealt with under the Act since it also covers actions where the perpetrator is an employee.

In the case of restaurant partners, consumers and fellow delivery partners, who are outside the scope of the Act, the policy defines the process as:

• Initial investigation by Internal Committee
• Guidance on redressal options, including under the Indian Penal Code

The post highlights that female delivery executives may lodge a police complaint. However, the process leaves a lot of important questions unanswered. For example, it is not clear whether action will be taken by Swiggy's ICC against offenders or does it work merely as a body for counselling the aggrieved. If the body has no power and merely counsels aggrieved women, there are serious questions about whether the policy will deliver what it seems to promise —protection to women delivery partners, as required under the Act.

5) Consequences for persons guilty of sexual harassment

Swiggy highlights a solution that is currently under the works against customers held guilty of sexual harassment. As a solution, during the process of resolving the complaint, the blog states that "after the initial investigation is done, no other female delivery executive with Swiggy is ever assigned to that customer. The number will be highlighted so that a female executive is not assigned even if the customer changes location".

Further, it states that "grievous offences punishable by law" will lead to the removal of the customer from the platform.

No information is provided on the consequences for the delivery partner or the restaurant partner.

6) Additional steps towards anti-sexual harassment

Apart from framing the policy, Swiggy has also taken the following steps:

• Educating restaurant partners, insta-mart store staff, and male delivery executives.
• Creating awareness among women delivery executives about sexual harassment.
• Emergency SOS button on the app to contact ambulance, police station or the Swiggy helpline

On a whole, the policy is a huge leap forward in ensuring better working conditions for delivery partners, but it does not highlight any new concepts in advancement of anti-sexual harassment laws. The policy, as per the blog post, mostly mimics the provisions of the POSH Act. It limits itself to women delivery partners, and the proposed consequences for sexual harassment lack clarity and deterring effects.

The only unique provisions are the inclusion of certain technological measures such as the SOS button and blocking customers.

What is the way forward?

Swiggy has definitely taken the right step by extending its anti-sexual harassment policy to women delivery partners. The policy covers various aspects such as on-ground assistance and raising awareness — a sore point in anti-sexual harassment policy implementation.

However, due to the lack of legal backing, Swiggy and other aggregators possibly lack the power to implement stronger policies, which furthers the need for a stronger and more inclusive law on sexual harassment.

While implementation of the policy is yet to be seen, the impact of extended policies is undeniable. Hopefully, more platform aggregators will follow suit until the limitations of the Act are removed through amendment(s).