Companies often fulfil operational requirements such as cooking, maintenance, security by recruiting an agency that in turn employs the right people. These employees work for the company but are paid and managed by the agency. Smaller companies often hire a domestic worker for similar requirements.
In such a scenario, what is the extent of the company’s responsibility viz-a-viz sexual harassment at the workplace?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines ‘employee’ and ‘domestic workers’ viz-a-viz the ‘principal employer’ in Chapter 1, Section 2:
(e) “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis
(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name
Let’s look at a scenario:
An international NGO runs a field program for the Rajasthan government to stop child marriage. Beena joins this program as a grassroots social worker. During the course of her work, Beena successfully intervenes to stop a child marriage from taking place. Enraged, a group of powerful men in the village sexually assault her when she is working in the fields.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the ‘principal employer’ is responsible for ensuring a safe work environment free of sexual harassment. The Contract Labour (Regulation and Abolition) Act, 1970 defines ‘principal employer’ and ‘contractor’ in Chapter 1, Section 2 as:
(g) “principal employer” means–
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
(c) “contractor”, in relation to an establishment, means a person who undertakes to produce a given result for the establishment… through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor;
Interpretation:
- Although Beena is a contract worker with the NGO, her principal employer is the Rajasthan government
- Any company hiring contract workers via an agency is considered to be principal employer of such contract workers
- The company is responsible for their safety at the workplace
If the scenario above sounds familiar, it is because it is the true story of Bhanwari Devi, a social worker employed by the Rajasthan government under a program run by the United Nations. Bhanwari Devi never received justice but her steadfast courage in reporting the gang-rape and fighting an arduous legal battle resulted in the Vishakha Guidelines (1997), and the eventual passing of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.