POSH ACT APPLICABLE FOR WORK FROM HOME SET-UP: Complete Guide

Introduction

The current period of social alienation has unintentionally triggered a massive worldwide experiment in mass distant working. This reformed working policy may have modified the employees’ working patterns, but the issues remained the same. One of the primary difficulties is workplace sexual harassment, which continues to be a concern for working women. As per a survey performed in collaboration between South Asia, the SafeNet) and the Never Okay Project, 88 of 314 respondents reported being sexually molested while working from home. These results emphasize the importance of protecting women from certain abuses even though working digitally. The “POSH Act” now controls sexual harrassment at virtual workplaces too. 

So, this paper focuses on the subject of whether the POSH Act adequately governs Sexual Harassment in Remote Working or whether additional law is required to safeguard women who work from home. It is broken into four sections. Part I provides a brief history of the POSH Act. Part II discusses the application and comprehensive examination of the POSH Act in relation to remote working. Part III addresses the Issues and Recommendations that may arise as a result of Online Work. Finally, Part IV presents the article’s summary.

Whether or not remote working arrangements are under the purview of the POSH Act.

The easiest method to address this issue may be to apply the requirements of the POSH Act to all of the problems that women experience when working remotely. We need to look at three bullet points in between answering the above question:

1. If and whether working remotely from a household setup falls inside the concept of “workplace” as stated in the POSH legislation.
2. Is there a virtual functioning setup in the grievances methodology?

Different Forms of Sexual Harassment

Sections 2 and 3 of the Posh Act which identifies sexual misbehaviour, may hold the answer. Section 2(n) subclauses (ii), (iii), (iv), and (v) cope with uncomfortable acts or actions that can happen while operating in remote locations, such as “(1) demand or invite sexual favours (2) attempting to make sexually suggestive insinuations (3) displaying pornographic material (4) any other unnecessary physical, verbal, or body language actions of a sexual nature.”

Section 3 broadens the concept of sexual harassment by stating that any of the given situations related to sexual harassment may indeed add up to sexual misconduct: implied or explicit “(1) promise of favourable treatment in victim’s careers (2) risk of deleterious intervention in victim’s work experience (3) threat about the victim’s present or prospective employability (4) intervention with work or constructing a threatening, aggressive, or hostile work environment

The definition in sections 2 and 3 is fairly broad since it includes both direct and inferred sexual behaviour as sexual harassment from both the unorganised and organised sectors. 

As a result, this wide definition encompasses some of the issues that women experience when working from home, such as:

• Delivering intimate and indecent messages. 
• Sexually explicit jokes/forwards/videos/drawings/pictures, 
• Over the phone or via teleconferencing, 
• Sexual remarks, 
• Constant idle conversation on the phone that is sexual, 
• Unwelcome comments made when conversing, 
• Stalking on the internet (stalking in all forms of social media), 
• Lewd gossip about coworkers about sexual affairs/sexual orientation/preferences/virginity, etc. 
• When conversing, use vulgar humour or profanity. 
• Constant requests for physical closeness, 
• Invading personal space by asking unwanted inquiries, 
• Making sexual remarks about bodyweight, overall appearance, 
• Colour, or posture. 

As a result, in response to the issue presented, it may be stated that the act itself gives examples of sexual harassment that might be encountered online when working remotely.

Extensive use of the phrase “workplace”

The solution may be found in Section 2(o) and other instances where the scope of the workplace has been broadened.

• Section 2(o) of the act defines “workplace” as “any specific destination by the worker coming out of or while working” under subclause (v). The word “arising out of” has been exposed to judicial interpretation from its inception, and most of the time, the court has attempted to give it a broad meaning. In addition, the term “out of or during employment” has been construed by the courts on occasion using the doctrine of Notional Extension. In general, the extension in employment law has been for determining compensation to be granted to employees or workers who experience injuries while on the job. 
• Mrs Noor Jahan, a rail gagman was told by his boss to move to another location for cleaning, and an accident occurred on the route from one location to another. Justice Shukla noted that the accident occurred during his job hour and while he was about to perform his duties on behalf of his company. 
• Lord Atkin further said in the case of Weaver v. Tredegar Iron Coal Co. that “the term of employment cannot be restricted to the time or location of a special subset in which the employees are hired to do so.” There is some plausible temporal and space stretch.” This is a summary of how courts have broadened the phrase “workplace” and compensated workers. Thus, using the same interpretation as in section 2 (o) (v), it may be determined that the word “workplace” might be extended to virtual operating in order to compensate victims of sexual abuse.

Method of redress for virtual workers

• Complaint filing

Section 9 of the Act outlines the formal method for filing a complaint concerning sexual harassment experienced by women. During this period of online work, women have the option of reporting grievances online. The Indian government has created a solitary complaint platform known as “she-BOX.” Any woman, regardless of her employment level, can register a report of harassment using this site, and the complaint will be forwarded immediately to the relevant authorities with jurisdiction to take action. If any women encounter harassment while working remotely, they can use this facility to register documented accusations.

• Temporary relief and compensation

During this period, the aggrieved lady may be required to work for or with the defendant, which might dampen the essence of the deed itself. To avert such a hostile working environment, IC has the authority to give interim relief to the victim if a written request is submitted. The first paragraph of the clause notes that there are three types of temporary reprieve that can be provided-

(a) relocate the affected woman or the appellant to another employment; or 

(b) provide the aggrieved woman up to three months’ leave; or 

(c) award the aggrieved woman any other remedies that may be specified.

The aforementioned respite might also be supplied by remote working or working from home. Women employees to work from home might send a letter to the IC committee requesting any of the foregoing remedies, including transfer and leave. Typically, multiple teams operate under distinct project managers in the online working of Organizations. These teams operate alone, having only touch with their peers. The IC might assign the respondent or the aggrieved lady to a different team to ensure that the victim and respondent have little or no interaction. In the case of educational institutions, the committee might adjust the aggrieved’s mentorship such that the responder no longer supervises or mentors her academic activity.

Part (C) of the provision has further broadened the remedy to any other order that offers relief to aggrieved women. This section can be expanded to include the use of any method conceivable while remote working to prevent the respondent from contacting the aggrieved.

• As a result, Section 13 sub-clause (3) of the act provides for victim compensation if the IC or LC determines that the claim against the respondent has been proven. 
• The remuneration described in this section is also available while working remotely. 
• As the section stipulates the employer’s deduction from the respondent’s income or earnings to give compensation, the section also directs the respondent to pay the money to the appellant if the company was unable to deduct the required amount. 
• This process can also be aided through the use of online media.
• Employers may remove a portion of the cash from the accused’s income when transferring the salary to the accounts of the workers in order to compensate the injured ladies. 
• He might potentially be charged directly with transferring the reparation via internet means.

Applying the different parts of the legislation, as well as their separate interpretations, it is clear how the provisions of the POSH Act, with their broad reach, include remote working and protecting women who work remotely and experience any sort of harassment.

Difficulties and Proposals

• The paradigm change in organisational functioning to a work-from-home model has its drawbacks, one of which is the danger of sexual assault.
• With the development of virtual working, there is a closer relationship between all of an organization’s employees. 
• This brings up the topic of internet communication, whether for formal or casual purposes. With advancements in technology, the workforce has discovered more effective methods to inflict damage on women, such as conveying sexually discriminating opinions, sexual approaches, and other improper comments via e-mails, video chats, and social media, thinking it to be harmless. 
• This may not be emphasized on these platforms such as Facebook since supervisors are not scrutinizing every message sent by the created groups.

As a consequence of the pandemic, many women are now being vulnerable to this new sort of abuse. They were unhappy when their supervisor enquired about their personal lives, such as what they were wearing, after-hours and unwelcome calls in the dead of the night, or demand to attend after-hours Zoom gatherings on a comprehensive visual. In general, women are unsure about what constitutes a threat in digital workplace and if they should speak out. As a result, many frustrated women internalise their fury and anxiety, which could also lead to extreme illness, poor work performance, and depression.

Education and Awareness

• The institution’s IC committee’s spirit is not only redressal of cases of sexual harassment, but also prevention. 
• In light of the same, required POSH training should cover not just themes like dressing professionally and restricting discourse to work-related issues, but also ensuring that workers understand what is and is not suitable in the context of a video chat. 
• They must not urge that female colleagues to participate in one-on-one video chats, as they have the choice of using “audio-only” mode. Employees should not think that just because they work late hours, they may send chat messages to coworkers during those hours.
• Furthermore, all central offices should indeed be addressed in official groups rather than in personal chats. As greater personal attention aids in their understanding of the anti-harassment message. 
• Organizations and organisations must give workers regular opportunities to express feedback and ask questions about the workplace. 
• Employees can express their concerns about a problem by using Google forms to provide feedback. Institutes can use these guidelines to handle online challenges with online solutions.
• Remote work has significantly increased the number of online meetings and videoconferencing. 
• In the instance of online encounters, the females have been unable to provide particular pieces of proof detailing the incident that transpired. Because of the abrupt change in the working from home policy, most women are unaware of sexual harassment rules for virtual workers and what measures should be followed if they are harassed. 
• To demonstrate to workers where the boundary between work and personal life should be drawn and to highlight their accountability as employers if they cross that line.

Essential Amendments in ICC

• Besides that, forming a sexual harassment internal committee consisting of members who collaborate in the same working place would refute the objective of such an advisory board, which is to investigate allegations of sexual harassment, because the recruiter would be capable of exerting some form of tension on the representatives. 
• As a result, instead of the Internal Complaints Committee, an employment tribunals, as proposed by the J.S. It would have been more efficient to have a Verma Committee report that collects and ratifies all allegations of sexual harassment encountered by women in the regulated or unregulated sector, i.e. workplace and virtual employment. 
• It also ensures that complaints are settled as rapidly as possible since this tribunal is not a civil court and may take its own strategy for each dispute.

Closure

Sexual abuse is a significant violation of an individual’s constitutional entitlement to a safer environment. As a consequence, it is the essential duty of the employer and corporations to eliminate all forms of sexual harassment and assault. The POSH Act is effective in establishing a safe and secure environment for women in both real and virtual workplaces. If indeed the preceding guidelines are followed, it may lead to greater deployment of the System, which could go a long way towards protecting females’ rights in the workplace. Online Posh training is effective these days as remote working culture is on its peak since 2020. Online working has made lives easy on the other hand sexual harassment cases are also rising. To combat this social evil from your remote workplace, you can adopt POSH Compliances at your workplace to ensure the safety and security of women working remotely from their respective places. POSH Online training program will help your employees to know their rights and spread awareness amongst them which will automatically lead to a safe and secure remote workplace. MUDS Management has successfully provided Online POSH Training to more than 20K employees via Virtual training. Go check out our E-Posh learning program.