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Virtual Harassment vis-a-vis the Doctrine of Notional Extension

With the advent of the novel coronavirus, there has been a dynamic shift in terms of defining normalcy with a shift of the workforce from physical to virtual, it would be correct to say that work from home is the new norm in such unpredictable times. Despite a paradigm change in the form of workplace, one such problem which remains the same, is Sexual Harassment at Workplace.

Sexual harassment at Workplace, includes "unwelcoming sexually oriented physical, verbal, or non-verbal behavior"[1]which creates a hostile working space, by violating a person's right to 'life, liberty, and equality'. In India, the legislation which governs and safeguards the rights of working women, in both formal and informal sector is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013("POSH Act"). The Act which came into being after the landmark Vishaka case[2], provided not only protection but also a medium for redressal to women working in hostile work places.

However today with a significant workforce shifting to an online platform it would be correct to say that, the conventional office spaces have extended much beyond the four walls of an office. Zoom, Teams, Skype and online platforms are the new offices, which in a way have made it non-compulsory for workers (especially the formal segment) to work in closed physical spaces. While the virtual spaces do provide a similar level of work experience, they too are hosts for display of unacceptable behaviour.

'Online abuses, offensive remarks, undefined workhours, non-consensual texts and images, and the passing of inappropriate comments '[3] are all the issues which are piling up in the current virtual works spaces. Hence it becomes paramount to learn and critique, the applicability of beneficial labor legislations pertaining to Sexual Harassment at a Workplace in a Virtual form.

Notional Extension
To delve into the topic of Virtual Harassment the doctrine of Notional Extension becomes essential. The concept of Notional Extension as the name suggests is one such theory which prescribes benefits to an employee, in an expanded realm of time and space, for the 'specific work' a workman entails, during the 'course of his/her employment'.

This theory, has it's drawing from Section 3(1) of the Workmen's Compensation Act,1923*[4] which states that "any accident which arises out of and in the course of employment of an employee shall be compensated."[5] The traditional approach of Notional Extension, has been to protect the interest of a worker, who has suffered from an injury while coming or going to the workspace.

However, if one deeply analysis the term, "course of employment" it not only restricts to the points of entry and exit, but to a wider ambit much beyond the four walls of any office. It can be learnt that the doctrine of Notional Extension when construed in a much liberal and non-restrictive manner can include a wide range of topics during the course of an employee.

Interpretation of 'Workplace' with regards to 'Notional Extension'

As Work places are safe harbors for workers to work productively and efficiently. Workplaces as defined under the POSH laws is to work in any place which is visited by employee for the course of their employment which includes an "office, establishments, enterprises, institutions, branches, premises, locations or units established, owned, controlled by the Company or places visited by the employees out of or during the course of employment including accommodation and transportation"[6]. It thereby, can be inferred that as the POSH Act includes a wide range of places, where a person can come in contact.

Now, in lines to the same, the doctrine of Notional Extension which technically extends the circumstances of working of an employee during his/her course of employment. Therefore, work from any digital platforms from anywhere be it home or hotel or any place shall be considered as course of employment. Therefore, work through virtual places does attracts the application of "workspace" as "extended workspace" though the laws of POSH.

While the underlying reasons for the enactment of POSH, has been to protect the interest of women by parallelly providing a means for redressal, to solve issues pertaining to Sexual Harassment. As Section 3(1) of the POSH Act states that, "no women shall be subjected to sexual harassment at ANY workplace"[7].

Virtual platforms hence shall be deemed as a form of workspace. Similarly, as in the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India the Delhi Held that an employee who has been a part of a conference held through an online means can't simply get away with a crime committed at his residence in lieu of it not being his workspace[8].

In the current digital times it becomes very difficult to identify between what is right or wrong, as there is a very thin line of differentiation between sexual harassment and harassment. As people working in an online format work behind a screen they lack human presence, and more often than not, it can lead to grave misinterpretations or miscommunication over virtual messages or calls.

Further, since most of the work from home setups don't have any designate timings, it can often make people uncomfortable while receiving messages over texts at odd hours. With no particular litigation addressing virtual issues, Virtual Harassment can only be backed with the doctrine of Notional Extension and can hence be interpretated from its broad understanding, however there can be situations where this understanding is rather restrictive, and fails to apply.

Since, Virtual Harassments is more of an urban issue than a rural one, the POSH Act portrays it only as a women issue than a labour issue. It takes away the general problem of working in a toxic, unfriendly work space and only sees the problem through one dimension. With Men to being victims of virtual harassment at workplaces, they too should be given equal weightage in similar concerns. There is hence an urgent need to extend the legislation and make laws governing the same more transparent, accessible and gender neutral.

Today not many people are aware of their rights when it comes to working in an online format, and many companies haven't taken a zero tolerance approach towards virtual harassment which today tends to occur on regular basis. There is also a callousness which surrounds many multinational corporations, public, private enterprises and the informal sector with respect to forming internal laws for a virtual set-up.

However, the POSH Act being interpretated liberally opens the gate to varied interpretations under the term 'extended workplace', which only acts as crucial step today in empowering and ensuring safety of the Women workers. Though protection for Women Workers is not complete, there still lies an urgent need to make the laws stronger and provide a safe working environment for every Workers working in a Virtual workspace.

  1. Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
  2. Vishaka & Ors. v State of Rajasthan & Ors. ((1997) 6 SCC 241)
  3. Sexual Boundary Violations via Digital Media by Juergen Budde,
  4. After implementation now, Social Security Code, 2020
  5. Section 3(1), The Employee's Compensation Act, 1923
  6. Section 2(o) The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013
  7. Section 3(1) The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013
  8. Saurabh Kumar Mallick v. Comptroller & Auditor General of India (MANU/DE/0956/2008)
Written By Sohil Khera

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