The article explores the legal position of female workers, especially the circumstances that force female workers to enter the field of platform-mediated gig economy and the problems they face therein. It illustrates how the current laws preventing sexual harassment in the workplace do not effectively address this problem. It suggests certain minor amendments to make the act more holistic.
A gig worker is an individual who makes a living outside of the traditional, long-term contractual employee-employer relationship. Gig workers usually engage in short-term projects for a range of customers. It might be ongoing contractual work or part-time work, and it could be project-based, hourly, or both. It has only been a decade since platform-mediated gig economy started gaining force. Now, most of our daily needs are fulfilled by platforms such as Uber, Swiggy, Urban Company, etc. Thus, there is a need to ensure that they are properly regulated, keeping in mind the safety of both the service provider and receiver.
When a simple search of ‘women in gig economy India’ is done, several reports show up, highlighting the high amount of female workforce in the gig economy. Several statistics are cited showing how the participation of female labour is only rising through the years and is predicted to reach new levels. The flexibility of the economy is cited as a positive reason for the higher amount of female labour participation as compared to participation in the classic labour economy. While the higher participation and presence is laudable, it is the result of a sad reality which is that most women who choose to work in the gig economy have no other option but to work there due to the flexibility it offers and not because they choose to work a flexible job out of their own free will. Thus, the need to have proper protection in place for these workers is only enhanced. One of the most pressing concerns amongst these is the right to a safe work environment by guaranteeing a well-developed policy that addresses sexual harassment. Currently, gig workers do not come within the ambit of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [‘POSH Act’].
This article discusses the benefits that female workers in the gig economy get and similarly, the drawbacks they have to deal with, with a focus on the Sexual Harassment of such workers in their workplaces. The article first discusses the classification of gig workers in India and the legal protections they are entitled to. It then discusses the lack of protection with respect to sexual harassment that is provided to the gig workers. It finally goes on to the changes and amendments needed in the legal regulations to ensure the safety of the gig workers.
Contextualizing the work environment in the platform based gig economy of India
Most women in India have the additional burden of carrying out unpaid work as familial responsibilities. This leads to the women in the formalized labour sector having a low attrition rate, which reflect the pace at which workers leave a particular job. This is where the gig economy becomes relatively more favourable for several women who wish to work but have familial restraints or responsibilities due to its flexibility and lower working hours. However, despite this flexibility, research shows that women are hesitant to enter the gig economy due to lack of job security and uncertainty surrounding status of employment.
The legal classification of gig workers varies from country to country, with some categorizing them as workers or employees, some as independent contractors, some as contractors with limited benefits. The significance of this legal classification is that benefits and protections only accrue to those individuals who are categorized as employees and not to independent contractors.
In India, these workers are regarded specifically as gig workers and not independent contractors or employees. The new labour codes make the registration of these workers mandatory for the companies and they are provided with certain benefits by the government. However, they are eligible only for social security benefits and not labour rights. Since they do not come within the ambit of the labour and employment regime, they cannot avail benefits such as collective bargaining or using the specialised redressal mechanism under the Industrial Disputes Act. The new code just provides that the Central Government will be notifying schemes for gig workers in the future, without providing any concrete benefits currently. Furthermore, the criteria for eligibility might result in the exclusion of certain workers. Thus, in India, they can be regarded as workers with limited rights.
The safety of gig workers in the context of sexual harassment – a need for change
The lack of provision of safety measures for female workers in the gig economy has been a global problem. There have been several instances of sexual harassments filed by employees of Uber and Lyft. An Indian Uber driver, Sheetal Kashyepi, said that “Sometimes customers ogle me, and I get scared, but it happens almost daily […] I cannot rebuke customers otherwise they will give me a low rating, which will affect my ability to get more work. Or they will make a complaint about me to the company, and the company will penalise me later.” The general feeling amongst all of the victims was that these companies offered little to no assistance after the incident had taken place and further had no protections in place to ensure such incidents do not take place. A study that looked into the working of five Indian platform based gig workplaces, found that only one of them even undertook any semblance of a safety procedure, with the rest claiming that their pre-service diligence is enough.
Due to the lack of institutionalised procedures for protection, women drivers have had to suffer improper sexual comments and behaviours from customers as a necessary part of their jobs. Women workers have shared that they are pickier about when and where they work to reduce the risk of harassment, which aggravates the pay gap by preventing them from taking advantage of attractive earning possibilities, such as weekends and late hours.
If the legal side of the issue is looked at, the situation is even more grim. While background checks are intensively done for the gig workers, the same is not extended to the users. Furthermore, if there is a case of harassment of the worker, the platform does not get involved at all and since the gig worker is not an employee in the legal sense, the provisions of POSH do not kick in. Thus, the worker is left defenceless and without monetary or enough social capital to pursue legal remedies independently in most cases.
The right to a safe workplace has been recognised as a fundamental human right and includes protection against sexual harassment. The Indian Supreme Court has also recognised that being objected to sexual harassment at the workplace is violative of the fundamental rights of women.
The POSH Act defines an aggrieved woman as any individual of any age who is the subject of sexual harassment irrespective of whether she is employed or not. However, the definition of a workplace does not clearly include the continuously changing workplace of women in the gig economy, who for instance might be cab drivers or beauty professionals. While the company that is engaging these workers might come within the ambit of a workplace as per the POSH Act, the provisions which is closest to the inclusion of the evolving workplace of a gig worker is defined as “any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey”. This definition includes the term employee within it which automatically excludes the gig workers. A simple amendment to this definitional provision by changing the word employee to an aggrieved woman or expanding it to include workers in the gig economy would be facilitative towards securing the fundamental rights of these women.
While recently the online harassment of a female colleague was noted to fall within the ambit of the POSH Act, this recognition is not wide enough to categorize gig workplaces as a workplace within the meaning of the Act, but a welcome recognition nevertheless.
It is thus stressed that a change is needed in the POSH Act to secure the right to a safe workplace for female workers in the gig economy by expanding the contours of the definition of a workplace. This is in keeping with the objective of the act, as recognised by the Supreme Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, where it pronounced that the definition of workplace should be wide enough to ensure that any area where a woman could be subject to sexual harassment is included within the definition.
The aim of this suggestion is not to categorise gig workers as employees but a recognition of the fact that without a legal obligation to secure such fundamental rights of the female gig workers, companies often use the categorisation of their workers as giggers to shirk themselves of any responsibility on the occurrence of any such incidents. If the definition is expanded, it provides a legal recourse to the workers which further can be used as a tool to ensure that the corporations they are working for has better policies in place.
On the private level, there is a need for companies to be more proactive in securing these rights for their workers and ensuring they are protected, rather than taking the undue advantage of the technicalities of definitions and legal provisions. They need to ensure that they enforce effective policies by evolving their rating, recommendation and matching features to make them more friendly towards their female gig workers instead on solely focusing on the customer.
It is unquestionable that platform based gig economy is on the rise in India. There are some benefits that it offers female workers such as the flexibility and an unbiased environment. However, even so, it has been noted that a large number of female workers are wary of engaging in this economy due to the lack of benefits that they get. One of these very pressing concerns is the possibility of sexual harassment and the lack of a formalized procedure or policy that helps the workers take action against the perpetrator and engage the help of the platform for the same. There is an urgent need to modify the POSH Act or create an alternative code or policy that regulates the involvement of these platforms in such disputes instead of giving them an opportunity to shake off all liability or responsibility. This would be in keeping with the legislative intent and recognised scope of the Act, as highlighted in several judgements of the Supreme Court of India.
The author is a third-year student at The National University of Juridical Sciences, Kolkata.
Categories: Legislation and Government Policy