With the evolution of the gig economy in India, questions regarding how labour laws apply to them have arisen in courts of law. In a recent case before the Karnataka High Court, the question of the responsibility of Ola (legally, ANI Technologies) to take action under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act 2013 arose. A customer had filed a complaint with the cab aggregator regarding sexual harassment by a cab driver against them and raised concerns of inaction by the Internal Committee at Ola.
What happened
The complainant was a customer who had hailed a cab through the Ola app. The complainant alleged that the respondent, who was a cab driver associated with Ola stared at her multiple times through the rear-view mirror, watched pornographic content on his mobile phone in a manner that she could see it and masturbated. Feeling uncomfortable, the complainant reached out to Ola regarding the incident.
When the complainant reached out to Ola, she was informed that the driver would be blacklisted and that he would be sent for counselling. However, the complainant stated that no other action was taken.
Further, Ola’s Internal Committee did not take up the complaint under the PoSH Act 2013, arguing that the respondent was not an “employee”. It was argued that Ola was not an employer but an “aggregator”, and the Internal Committee did not have jurisdiction to take up the complaint. Ola acts as an “aggregator” or as an intermediary between the user, who is looking for a ride and the driver who is providing the service but does not directly provide the service themselves.
Understanding an “employee” under the PoSH Act 2013
The PoSH Act 2013 defines an “employee” as a person employed at a workplace for any work on a regular, temporary, ad hoc or daily wage basis. They may be employed directly or through an agent. An employee may also be a contractor, with or, without the knowledge of the principal employer.
An employee may be a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name. Payment of wages is also not the only definition of an employee as a person working for remuneration or voluntarily.
An “employee” under the PoSH Act 2013 is uniquely defined, as it does not limit itself to persons directly employed for remuneration on a full-time basis. Given this definition, a cab driver associated with the cab aggregator would be considered an employee.
The role played by Ola
In court, Ola tried to argue that they are merely an intermediary between the customer and the driver – like a marketplace. They claimed they were not an employer and could not take responsibility for the driver’s conduct.
The Judge noted that the cab aggregator is not comparable to e-marketplaces such as Amazon or Flipkart because of the lack of physical presence or contact between the seller and the buyer, who are connected by the marketplace.
Takeaways
As organisations implement the PoSH Act 2013, it is essential to be mindful of the definition of an employee under the law. Most other labour compliances in India only view full-time employees as “employees” in terms of upholding labour rights. However, the unique definition of the PoSH Act 2013 focuses on creating a safe workplace, beyond mere compliance.
The law explicitly defines creating a safe workplace as a duty of the employer and all actions under the law are viewed through this lens of workplace safety.
To uphold this responsibility, it is important for organisations to ensure compliance with the PoSH Act 2013 and ensure awareness sessions and redressal mechanisms are for all employees.