Prevention of Sexual Harassment in the Gig Economy and Informal Sector

About the author

The author of this article is Dona Elizabeth Josy, a 6th Semester BA LL.B student from Govt Law College Thiruvananthapuram

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) in India represents a crucial legal framework designed to protect women from sexual harassment in their professional lives. The Vishaka Guidelines, which were established by the Supreme Court in 1997 and recognised women’s fundamental right to equality and dignity in the workplace, gave rise to this legislation¹. By establishing safe and secure working conditions, the POSH Act seeks to promote gender equality and guarantee that women can enter the workforce without worrying about harassment or discrimination. The gig economy’s growth and India’s sizable informal sector, however, highlight the changing nature of work and pose particular difficulties for the legislation’s effective application and reach.

Applicability of the POSH Act in India:

The POSH Act, enacted on December 9, 2013, attempts to protect women from sexual harassment in workplaces. According to the Act, “sexual harassment” includes any unwanted physical contact, requests for sexual favours, sexually suggestive comments, the display of pornography, and any other unwanted sexually suggestive verbal, nonverbal, or physical behaviour. According to the Act, any woman who claims to have experienced sexual harassment at work, regardless of age or employment status, is considered an “aggrieved woman”.

Additionally, the word “employee” is broadly used to refer to anyone who is paid a regular, temporary, ad hoc, or daily wage, whether directly or through an agent; this includes contractors and people who work voluntarily. In order to handle complaints about sexual harassment, the Act requires all workplaces with ten or more employees to set up an Internal Complaints Committee (ICC). The Act allows for the establishment of Local Complaints Committees (LCCs) at the district level for businesses with fewer than ten employees or in cases where the employer is the target of the complaint.

Gig and Informal workers in Indian Economy

According to Section 2 (35) of the Code on Social Security, 2020², gig work includes people who work or take part in agreements to make money outside of the traditional employer-employee relationship. This definition, which emphasises a noted change in employment patterns, is consistently used across different sources. Short-term, flexible engagements that are frequently made possible by digital platforms are the hallmark of gig work. In India, ride-sharing services like Uber and Ola, food delivery services like Zomato and Swiggy, and freelance services platforms like Fiverr and Upwork are typical examples. The promise of flexible work schedules and the growth of digital platforms are driving the gig economy’s rise as a major employment option for Indian women.

On the other hand, all economic activity that takes place outside the scope of official regulations and governmental oversight is referred to as the informal sector. Small companies, street sellers, and independent contractors who usually work without official contracts or access to benefits are what define this industry. The informal sector plays a crucial role in India’s employment landscape, employing an estimated 85% to 90% of the country’s workforce³. Employment in this sector often lacks formal protections like written contracts, paid leave, minimum wage, or regulated working conditions. The informal sector covers a broad range of jobs, including small-scale manufacturing, street vending, domestic work, home-based jobs, and agricultural labour.

In India, women make up a sizable share of the informal workforce; estimates range from 81.8% to 92% of employed women working in this field⁴. This demonstrates how gender plays a significant role in the nation’s informal economy. Within this industry, women work in a variety of occupations. Many women work in agriculture, frequently as seasonal workers with no formal contracts and in hazardous conditions. Women are over-represented in domestic work as well, and they are often undocumented workers, leaving them open to abuse and a lack of social security.

Challenges in Implementing the POSH Act in the Gig Economy:

The gig economy, which is defined by temporary employment and freelance work made possible by digital platforms, poses serious obstacles to the conventional employer-employee structure that the POSH Act envisions. As they are frequently categorised as independent contractors rather than employees, gig workers’ employment status and, thus, their protection under the Act, are unclear. Due to this classification, platforms may decide not to create Internal Complaints Committees, depriving gig workers of official grievance procedures. It can be challenging to adapt the POSH Act’s definition of “workplace,” which encompasses both physical and virtual spaces, to the dynamic and frequently remote settings in which gig workers operate.

A delivery driver’s job, for example, is always changing, and they might interact with customers rather than the traditional colleagues. In the gig economy, the absence of a distinct employer-employee relationship makes it more difficult to assign accountability for dealing with sexual harassment. Although some platforms have voluntarily put in place grievance procedures, it’s possible that such systems don’t always follow the guidelines and standards of the POSH Act. The vulnerability of gig workers, especially women, to sexual harassment is further increased by the lack of required grievance procedures and awareness training specific to the particularities of gig work.

Challenges in Implementing the POSH Act in the Informal Sector:

The Indian informal sector, which employs a vast majority of women, has unique difficulties in making sure the POSH Act is implemented effectively. Many of the women in this industry work in remote environments, like domestic work or agriculture, they are especially vulnerable to harassment and exploitation. Lack of knowledge about the POSH Act and the existence of Local Complaints Committees, the main redressal mechanism for workers in the unorganised sector and workplaces with fewer than ten employees, is a major obstacle.

Women in the informal sector are frequently discouraged from reporting instances of sexual harassment due to socioeconomic factors, such as poverty, illiteracy, and fear of losing their jobs. For domestic workers and other informal labourers, proving employment a requirement for lodging a complaint under the Act can also be challenging. Due to a lack of funding, infrastructure, and qualified staff, Local Complaints Committee operations have varied from district to district. Although the procedure for filing complaints with LCCs is comparable to that of ICCs, it might not fully address the unique challenges faced by marginalised women working in the unorganised sector.

Workplace Sexual Harassment Legislation in Foreign Countries:

Several foreign countries have implemented legislation addressing sexual harassment in the workplace, offering India with possible models to follow, especially when it comes to non-traditional employment.

UK: The Worker Protection (Amendment of Equality Act 2010) Act 2023⁵, which came into force on October 26, 2024, significantly strengthened the legal framework of the United Kingdom. Employers now have a new preventative obligation under this Act to take reasonable measures to shield their staff members from sexual harassment while they are on the job. Sexual harassment is defined by the Equality Act 2010⁶ as unwanted sexual behaviour that infringes on someone’s dignity or fosters an environment that is intimidating, hostile, degrading, humiliating, or offensive. The Equality Act’s broad definition of “worker” can include people outside of the conventional employer-employee relationship, such as contract and agency workers, even though the new law focuses on the employer’s obligation to employees. The Employment Rights Bill also suggests extending this obligation to stop third-party harassment.

Australia: The Fair Work Act 2009⁷ and the Sex Discrimination Act 1984 (cth)⁸ are two Australian legislations that deal with sexual harassment at work. The Fair Work Act forbids sexual harassment at work and offers opportunities for employees, including contractors, volunteers, and potential hires, to seek if their employees or agents engage in sexual harassment, employers may be held accountable unless they can demonstrate that they took all appropriate precautions to stop it. Businesses and organisations are required by the Sex Discrimination Act to take proactive, significant steps to eradicate, to the greatest extent feasible, illegal conduct related to employment, including sexual harassment, sex discrimination, and sex-based harassment. This positive duty, which prioritises prevention over reaction, applies to government agencies, independent contractors, and sole proprietors.

Canada: According to the Canada Labour Code⁹, sexual harassment is any sexually suggestive behaviour, remark, gesture, or interaction that is likely to offend or degrade an employee. Ontario has broadened the definition of workplace harassment to encompass virtual interactions, and several other provinces have also reinforced their anti-harassment policies. The Digital Platform Workers’ Rights Act (DPWRA) in Ontario¹⁰, which takes effect on July 1, 2025, is a noteworthy development. This Act represents a growing recognition of the need to regulate the gig economy, even though its primary focus is on transparency, pay, and dispute resolution for gig workers. It may also be expanded to include more robust protections against harassment. Additionally, the government has suggested increasing funding to combat sexual harassment at work, especially for those who are more vulnerable.

Current Trends in Workplace Harassment in India, Particularly Online Platforms:

Similar to worldwide trends, workplace harassment in India is increasingly taking place online as well as in more conventional physical settings. The prevalence of online communication platforms and remote work have opened up new channels for harassment, such as online stalking, cyberbullying, and the circulation of offensive content. The prevalence of online harassment has been brought to light by the #MeToo movement, which has highlighted that misconduct can occur through social media, messaging apps, video conferencing platforms, and email¹¹.

The POSH Act lacks specific provisions and mechanisms for addressing digital forms of harassment, even though its definition of sexual harassment could be interpreted to include online behaviour and its definition of “workplace” includes virtual work environments. Due to the potential complexity of digital evidence and jurisdiction, this ambiguity may make it difficult to investigate and resolve complaints of online harassment. Companies must revise their POSH policies to specifically address online harassment, defining what behaviour is forbidden online and providing a clear process for reporting and looking into such instances. Fostering a respectful and safe digital workplace also requires educating staff members about proper online conduct and the repercussions of online harassment. Training employees on appropriate online behaviour and the consequences of online harassment is also crucial for fostering a safe and respectful digital work environment.

Recommendations

Gig economy

Gig and platform workers should be specifically included in the definition of “employee,” regardless of their classification. Platforms that employ more gig workers than a predetermined number ought to be required to set up Internal Complaints Committees or other grievance redressal procedures that are in line with POSH guidelines. It is necessary to broaden the definition of “workplace” to clearly include the various physical and virtual spaces where gig workers are employed. In order to give gig workers the same protections as regular employees, platforms should be legally obligated to put in place strong, POSH-compliant grievance procedures. Both employees and clients should be required to participate in sexual harassment awareness and training programs that are specifically designed for gig workers.

Informal Sector

District-level Local Complaints Committees need to have much better infrastructure and resources, including committed employees, sufficient funding, and thorough training for committee members. Using a variety of media and community outreach initiatives, extensive awareness campaigns in local languages regarding the POSH Act and the function of LCCs should be carried out. Informal workers should be able to file complaints more easily, and resources such as free legal assistance and collaborations with non-governmental organisations should be easily accessible. Ease of access could be enhanced by setting up regular outreach camps or mobile LCC units in areas where there is a high concentration of informal workers.

Conclusion: Towards a More Inclusive and Protective Framework:

Despite being a landmark law, the POSH Act must change to adequately address the realities of India’s shifting labour market, especially the sizable gig economy and informal sector. The difficulties in applying the Act in these unconventional contexts emphasise the necessity of legislative changes, more robust enforcement strategies, and focused awareness campaigns. Gaining knowledge from other nations’ experiences, such as the UK, Australia, and Canada that have imposed positive and preventative obligations on employers can be extremely beneficial for fortifying India’s legal system. Addressing the growing problem of online harassment under the Act’s jurisdiction is a very essential step in establishing a more welcoming and secure environment for everyone. By adopting a comprehensive approach that involves legislative reforms, robust implementation, and sustained awareness efforts, India can ensure that the promise of a safe and dignified workplace extends to every woman, regardless of the nature or sector of her employment.

References: –

1. Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

2. The Code on Social Security, 2020

3.Ministry of Labour & Employment, Employment in Informal Sector and Conditions of Informal Employment, Vol. IV (2014-2015).

4. Why Are There so Many Women Informal Workers in India?, Foreign Policy

5. The Worker Protection (Amendment of Equality Act 2010) Act 2023

6. Equality Act 2010

7. Fair Work Act 2009 (Cth) (Australia).

8. Sex Discrimination Act 1984 (Cth) (Australia).

9. Canada Labour Code, R.S.C. 1985

10. The Digital Platform Workers’ Rights (DPWRA)

11. Monica Anderson & Skye Toor, How social media users have discussed sexual harassment since #MeToo went viral , Pew Research Center.