Act's Compliance GuidelinesGender@Work

Definition of Workplace under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013

It is an established fact that every victim of sexual harassment at workplace, willing to file a report shall do so as per the Act. Now the questions which arise in the mind of such victims are:

What is a workplace? Is my case covered under the Act?

Most of the women in India are under the misconception that workplace entails only of the primary office space they work at. On the contrary “workplace” is an all encompassing term which includes the actual office space, work related trips, calls, messages, chats, or any place or circumstance where the professional relationship subsists.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act 2013 [Act] has introduced and established the concept of an extended workplace. Extended workplaces basically consist of any place visited by the employee arising out of or during the course of employment. This also includes transportation provided by the employer for undertaking such a journey to the workplace.

Let’s say you are an employee of Reliance. As an employee and a spokesperson of your Company you walk into the office of NDTV for an interview. In their office, an employee of NDTV touches you inappropriately. Is your Employer under the obligation to investigate this incident?

Yes. When an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, and employee relations obligation to thoroughly investigate the charges. The employer can’t decide whether to believe the employee but must take him or her at their word.

It is upon the employers to make sure that their employees aren’t subjected to an environment where they are subjected to any unlawful act, even if it is from a non-employee.

The applicability of this Act is at wide as it can get. The Act covers every possible workplace that one can imagine, but does that cover the unorganised sector?

What exactly do we understand by organized and unorganized sector?

Organised sectors consists of workers who are employed by government, state owned enterprises and private sector enterprises. These workers are governed by proper terms of employment and have an assured and structured work. They have fixed salary and paid benefits.

Unorganised sectors on the other hand consist of workers who work in a place which is unrecognized or unregistered by the Government. They do not have employment terms and do not follow any rules or regulations. These workers do not enjoy employment security nor do they have any fixed salary or benefits.

Unfortunately, there are not many laws which protect the unorganized sectors, which raise the obvious question.

Are the female workers, working in an unorganized sector, protected under this law?

Ciara is an employee in a multi-national company. Ciara not only goes to her office but she has to travel a lot for work related meetings as well. Ciara is exposed to lot of new people on the course of her meetings and travel. On one such meeting, at a restaurant, Ciara’s client made sexual gestures at her. Ciara went back to her office and immediately reported about the incident, as she knows that her Company, being an organized sector, falls within the purview of the Act.

Chameli is a household help, who does odd jobs in several houses to make ends meet. Chameli works in 3 houses every day. She is exposed to her employer’s family members, guests and other visitors. During one such visit, one of the relatives of her employer touches her inappropriately, making her escape the house and a pledge to never return. She was even ready to let go of her compensation for that month. Is she protected under the Act?

Yes, Chameli is very much protected under the Act. Under the definition of the Act, both Ciara and Chameli are the victims of sexual harassment, despite the fact that she belongs to the unorganized sector. The Act does not differentiate between organized and unorganized sectors and hence is applicable on both of them.

This Act has broadened its purview further by extending its power on not only the Indian entities but the foreign entities as well. This means that the protection provided to a woman employee working in an India entity like TATA or Reliance shall be similar to that of a woman working in a foreign entity like JP Morgan or PepsiCo.

The definition of workplace under this Act can be understood into three categories:

Industries:

Government/ Private Companies, Film industry, Sport Industry, Music Industry, Hospitals, Hotels, Hospitality Industry, Banking, Insurance, Finance Industry, law firms, Petroleum Industry, Textile/ Fashion Industry,  Hotel, Railway, Airway, IT Industry, Retail Industry, Pharmaceutical Industry, Domestic Workers Industry, NGO, trust, Defense Industry, Shopping Malls, etc, are few of the industries which are protected under the Act. This is an all inclusive list of the industries which are covered under the Act.

From a woman laborer in the coal mines to an A-list bollywood actress, this Act recognizes all of them. Whether it be a woman doctor or a lawyer working in a law firm, all their employers have a binding obligation to provide them with a safe and secure workplace.

A reporter who has to travel to almost every nook and corner of the world to ensure that the public is privy to all the essential news, even her employer must make sure that her work is not implicitly or explicitly affected by a hostile and offensive work environment.

Every woman who works in a farm to a woman working as a chartered accountant, an employee in a hotel or a waitress in a restaurant, or it be a woman in the army, it is safe to say that all these woman have the right to be protected from sexual harassment, as per the Act.

Even domestic workers are covered under Industry. The Act shall also cover shopping malls and shops.

Sectors/Institutes: Sector is a broad classification which consists of different business segments in itself. Essentially, the industries are created by further breaking down sectors into more defined groupings. The sectors can be divided as follows: Agricultural Sector, Education Sector, Economic Sector, forestry, media and entertainment sector, Construction Sector, Manufacturing Sector, Transport Sector, Technology Sector, Service Sectors to name a few.

An agricultural sector will constitute the likes of fisheries and animal husbandry. Therefore any woman who works in the same shall be protected under the Act.

The likes of both teachers, students and other female stuff, who are a part of schools, colleges or any other coaching institutions shall be covered under the Act as well.

A female employee in a packaging company or at a construction site, they will be protected in both the situations. The former being a part of the manufacturing sector and the latter being in the construction sector wherein the employees are liable to provide the women with a safe workplace.

In recent times we have seen a spurt of woman employees in sales and communication services. These fall under the service sector. The service sector also comprises of the beauty salons. More than 50% employees in the salons are woman. Under the Act, the woman working in these sectors are also protected.

Other Work spaces: cooperative societies, lawyers chamber, any government office, shops

Extended Work spaces: sports complex or venue, visit to hotels or restaurants where work related meetings are conducted; work related phone call, messages, chats, shops, any place where one visits in relation to work,

Work is never restricted within the four corners of cement and bricks. Almost every profession requires the work to extend out of the office premises. Since the work is unrestricted so is the law. The employer must not be deluded to think that their liability subsides once the employee has left the office premises. The employer is liability consists of and is not limited to every place the woman visits with relation to work, every client she meets, every phone call she makes etc.

For example:

Situation 1: Your colleague talks to you with a sexual overtone during your travel from Delhi- Bangalore for a business trip.

Q: Will that amount to sexual harassment at workplace?

A: Yes. Since he was making you feel uncomfortable and harassing you during a work related trip.

Situation 2: You are at your home, on a work related call with your boss. During the conversation he makes a proposal to you in return for sexual favors.

Q: Does this amount to sexual harassment at workplace?

A: Yes. He made sexual advances towards you while on a work related call during your course of employment.

Author: Anuradha Hazra, Associate (Legal), Team Ungender

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