Should sexual harassment protection not be extended to gig work?

The legal ambiguity on gig work in India leaves a big lacuna in the protection of both workers and customers from sexual harassment. How can the gap be closed, asks Lakshita Handa.

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POPULAR cab aggregator platform, Ola, recently submitted a plea before the Karnataka High Court stating that its drivers could not be brought within the purview of the Prevention of Sexual Harassment at the Workplace (POSH) Act, 2013, since they are independent contractors and not employees of the company.

This submission was made in response to an alleged instance of sexual harassment against a female passenger in 2018. The woman's complaint averred that the driver had engaged in inappropriate behaviour during her cab ride, including watching pornographic content in front of her.

While the driver had been sent for counselling, the victim felt that Ola had not taken strict action to protect the safety of its customers.

As the voices demanding the safety of women in the workplace are becoming louder and more cogent, this incident begets a broad interpretation of the POSH Act to ensure that platforms do not shirk their responsibilities and hide behind the gig worker veil.

Extending the application of the POSH Act to gig workers will be transformative towards ensuring a safe working environment for gig workers and also holding the platform liable in the event of such cases arising against customers.

Are gig workers employees?

With the sudden growth of the platform economy over the last few years, platform aggregators have begun to generate a large number of employment opportunities, for both skilled and semi-skilled persons.

It is estimated that the number of gig workers in India will increase from 77 lakh in 2021 to 2.35 crore by 2030, offering a wide range of services.

Also read: Gig workers should be included under the Industrial Disputes Act

The 2020 Code on Social Security defines a gig worker as a person who performs work or participates in a work arrangement and earns from activities outside of a traditional employer–employee relationship.

In this sense, the gig economy harnesses the internet and technology to enable quick service delivery for consumers and help workers earn additional income through a flexible engagement model.

However, the legal distinction between 'contracts of service' and 'contracts for service' leaves such gig workers outside the scope of labour law enactments such as the Industrial Relations Code, 2020 and the Occupational Safety, Health and Working Conditions Code, 2020.

This deprives gig workers of basic entitlements such as minimum wage, paid leave and healthcare. The persistent debate over extending benefits envisaged under labour laws to gig workers has resulted in the demand to enact separate legislation for gig workers in India or subsume them within existing legislative frameworks.

The corporate jargon utilised by most platform aggregators labels such gig workers as 'independent contractors' or 'partners'. The assumption that such workers enjoy more autonomy in determining the terms of their service may not always be true.

In a landmark ruling in February 2021, the UK Supreme Court confirmed that Uber drivers are workers and not independent contractors. It was noted that the relationship between the parties was to be inferred on the basis of actual conduct and not the agreement signed between them.

In light of the facts available before the court, it was established that Uber exercised control over the daily working conditions of the driver; made them sign and accept a standard written agreement; controlled their choice on accepting or rejecting trips; and restricted the communication between the passenger and the driver beyond one individual journey.

Ultimately, this high degree of control led to the finding that drivers were workers not only during their passenger rides but also when they had the app switched on and were waiting to accept passenger journey requests.

Also read: Dissecting the Rajasthan gig workers Bill

While courts in India are yet to apply this test to adjudicate the relationship between platform aggregators and gig workers, this case sets a precedent for deciding employment status disputes by taking into account the real relationship between the parties.

How can the POSH Act be extended to gig workers?

Gig workers are highly susceptible to harassment and exploitation by clients, given the skewed power dynamic and 'ratings'-driven system of performance which is rigged in the favour of customers.

Inadequate legal protection and the absence of an effective grievance redressal mechanism make this class of workers even more vulnerable to instances of sexual harassment and abuse.

Occasions of harassment are often brushed under the carpet and the woes of gig workers at the receiving end are exacerbated by the fear of the platform aggregator's indifference to such occurrences.

Smaller platforms, such as Sakha Cabs, have been more sensitive and proactive towards addressing gender-specific safety concerns of women and have built structures to provide immediate support through staff.

However, bigger players in the market such as Urban Company still encourage their partners to 'leave their stuff and run' in the event of sexual abuse or harassment.

These same multi-million dollar establishments also claim that their hands are tied due to the absence of an employer–employee relationship and consequent ambiguity in the extension of sexual harassment at workplace laws to the gig workers associated with them.

Notably, the POSH Act defines an employee as a person employed at a workplace for any work on a regular, temporary, ad hoc or daily wage basis.

Such a person may be employed either directly or through an agent, including a contractor, with or without the knowledge of the principal employer. The Act further provides that the employment may be express or implied and a contract worker, probationer, trainee, apprentice or person by any other such name will also be included within the purview of an employee for the purposes of the Act.

Similarly, the term 'aggrieved woman' has been defined to include a woman of any age, whether employed or not who alleges to have been subject to sexual harassment.

Also read: Women participation in gig economy: Why Urban Company's suit against protests by its "partners" calls for legal intervention

While it has been argued that the definition of an 'employee' under the POSH Act does not explicitly include gig workers, it emerges that the definition is not exhaustive due to the usage of the words 'employed by any other such name'.

When construed in light of other examples enlisted in the definition, including contract workers, it may be legally tenable to also include gig workers within the ambit of the law.

Popular food delivery platform, Swiggy, has already extended its 'sexual harassment redressal policy' to include female delivery executives. However, providing platforms the flexibility to opt into the law is no longer a practical solution.

How can the situation be remedied?

The current status of a gig worker, from the standpoint of their employment model and statutory entitlements, remains ambiguous. Depending on the conditions of employment that bind them, they could be a self-employed contractor, an agency worker or an on-call employee.

While the opportunity to freelance can be liberating for a small portion of technologically adept educated consultants, gig work runs the risk of commodifying labour through new forms of control. It simultaneously undermines existing labour standards.

At a macro level, there is a need to re-enforce minimum employment conditions that platform aggregators circuitously avoid while engaging gig workers. This may be done by providing legislative clarity on ambiguous employment relationships and concomitantly strengthening the rights provided to workers under these arrangements.

Active, innovative strategies of labour regulations better attuned to conceptualise the nature of work and employment involved in the gig economy may be put in place.

This can only be done if the problems and challenges faced in a transitional labour market are closely examined alongside credible data indicating the age, gender, socio-economic background and comparative vulnerability of such workers.

Inserting both transparency and worker's voices in the process would be pivotal in regulating this arena.

The pervasive problem of harassment and abuse also warrants immediate attention and legal intervention through an amendment to the POSH Act which explicitly brings gig workers into the definition of employees for the purpose of the Act.

If gig work is to become the new norm, we must pay due attention to the work–life trajectories of those associated with the industry lest someone else might pay too high a price just for the sake of our convenience. 

Views are personal.