The gig economy is booming, reshaping how we think about work. But with this shift comes a critical question: Are gig workers protected under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). The Act was designed to ensure a safe and dignified working environment for women. However, the rise of gig work has exposed gaps in its coverage, leaving many workers—especially women—vulnerable. Let’s dive into why these matters and how it can be addressed.
What is POSH Act?
POSH Act is India’s landmark legislation to prevent and address sexual harassment of women at workplaces. It mandates the creation of Internal Committees (ICs) in organizations, defines workplace sexual harassment, and outlines mechanisms for redressal. Importantly, the Act takes a broad view of an “employee,” covering individuals working in traditional as well as temporary, ad-hoc, or daily wage roles.
But here’s the catch: gig workers—those delivering food, driving taxis, or freelancing on platforms—are often classified as independent contractors. This means they don’t always fit into the traditional employer-employee framework and, therefore, may not be protected under the POSH Act.
The Rise of the Gig Economy
India’s gig economy is growing fast. Platforms like Swiggy, Uber, Zomato, and Urban Company have revolutionized how services are delivered. While these platforms offer flexibility, they’ve also blurred the lines of employment. Gig workers, often paid per task rather than through a salary, operate without the job security or benefits of traditional employment.
For women gig workers, the challenges are even greater. From working late nights to visiting private homes for services, they often face unsafe and isolated conditions. Unfortunately, many of these women have no formal mechanism to report workplace harassment.
Why the POSH Act Struggles to Protect Gig Workers
1. Ambiguity in Employment Status
In the case of Tanvi Sinha v. Internal Complaints Committee & Ors., Ola contended that the PoSH Act did not apply to them in this context, arguing that their drivers are independent contractors, not employees, and thus fall outside the purview of the Act. The company also highlighted that its Internal Complaints Committee (ICC) had dismissed the complaint based on external legal advice, without a thorough examination under the PoSH Act.
Gig workers are not considered employees under most labour laws. The Act provides that an ‘Employee’ includes a person employed on regular, temporary, ad hoc or daily wage basis (directly or through an agent) and includes 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. While the Act’s definition of “employee” is broad, it doesn’t explicitly mention gig workers, leaving them vulnerable to legal nuances such as ‘employee’ versus ‘workers.’
2. What Counts as a Workplace?
The POSH Act defines a “workplace” to include both physical and virtual spaces. It also includes any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey. However, gig workers operate in dynamic environments. A delivery person’s workplace might span streets, restaurants, and customers’ homes. This fluidity makes it hard to determine who is responsible for ensuring their safety.
3. No Internal Committees
Under the POSH Act, companies with over ten employees must establish an IC to handle complaints. However, platforms often claim that gig workers are “partners” or “contractors,” not employees, and avoid accepting their complaints before the IC. This leaves gig workers without an access to address grievances under POSH Act.
Steps in the Right Direction
India has started acknowledging gig workers in its legal framework. For instance, the Code on Social Security, 2020, recognizes gig and platform workers as distinct categories, extending some benefits like insurance and maternity protection. However, it doesn’t address workplace harassment, showing there’s still a long way to go. Some platforms, like Uber and Urban Company, have voluntarily implemented grievance mechanisms to handle complaints from gig workers. While commendable, these are not a substitute for legal protections—and they vary widely in quality and effectiveness.
Registration of gig workers and platform aggregators on e- shram portal.
In a time characterized by swift technological progress and the emergence of the gig economy, the essence of work is changing at an unparalleled speed. With millions of people participating in platform-based jobs, including ride sharing and food delivery governments across the globe are facing the challenge of guaranteeing equitable labour standards and sufficient social security for these workers.
Acknowledging this urgent requirement, the Ministry of Labour and Employment (“MOL&E”) in India has adopted a proactive stance by issuing a notification on September 16, 2024, which includes a Standard Operating Procedure (“SOP”) intended to incorporate aggregators and their platform workers into the e-shram portal. Moreover, to support this notification, on September 18, 2024, the Union Ministry of Labour and Employment led a meeting with platform aggregators highlighting the importance of registering platform workers on the e-shram portal.
During the mentioned meeting, the Union Minister of Labour and Employment established a goal for enrolling workers on the specified portal within the upcoming 3 months.
This meeting saw the participation of several aggregators, such as Urban Company, Swiggy & Instamart, Zomato & Blinkit, Porter, Even Cargo, Amazon, and Uber. A directive has also been issued in this context by the press bureau of India.
This notification describes an “aggregator” as a digital platform or marketplace that facilitates a connection between a buyer or service user and sellers or service providers. It is relevant to gig workers on platforms, involved in platform jobs and among other things, in service such as ridesharing, food and grocery delivery, logistics, healthcare, travel and hospitality, content and media, and any other goods
and services provider platforms.
The SOP also defines “platform work” to mean work arrangement outside of a traditional employer-employee relationship in which organizations or individuals use an online platform to access other organizations or individuals to solve specific problems or provide specific services as may be notified by the Central Government in exchange of payment.
The registration of gig workers and platform aggregators on the e-Shram portal is a crucial step toward formalizing India’s vast unorganized sector. It ensures that gig and platform workers are not left behind in accessing social security benefits and other government welfare schemes. However, for the initiative to succeed, greater awareness among workers, stricter enforcement of aggregator responsibilities, and seamless integration of data are essential. By empowering gig workers with social protections, the e-Shram portal can help India build a more inclusive and equitable labour market.
What Can Be Done?
1. Amend the POSH Act
The simplest solution? Update the POSH Act to explicitly include gig workers. This would require redefining “employee” to encompass gig and platform workers and broadening the definition of “workplace.” Gig workers should also be defined in the Act.
2. Mandatory Grievance Systems
Platforms should be legally required to set up robust, POSH-compliant grievance mechanisms. These systems should provide gig workers with the same protections as traditional employees.
3. Awareness and Training
Platforms need to invest in awareness campaigns to educate workers and customers about workplace harassment and safety protocols.
4. Judicial Support
The Karnataka High Court dismissed Ola’s argument, emphasizing the negligence and failure of the company’s authorities to properly handle the serious complaint. The court criticized the ICC’s dismissal of Ms. Sinha’s complaint, noting that it was based solely on external legal advice rather than a comprehensive consideration as mandated by the PoSH Act. The court underscored the responsibility of cab aggregators to ensure a safe working environment and to address complaints of sexual harassment appropriately.
This case highlights the evolving legal landscape concerning the responsibilities of gig economy platforms in India, particularly regarding the safety and rights of individuals interacting with such services. Courts need to adopt progressive interpretations of the POSH Act to include gig workers, even before legislative changes take place. Judicial intervention has often played a pivotal role in bridging gaps in labour protections.
5. Advocacy and Pressure
Civil society groups and labour unions must campaign for reforms to protect gig workers. Public advocacy can bring much-needed attention to their vulnerabilities.
Learning from Global Practices
India isn’t alone in grappling with gig worker protections. In the UK and the US, courts have begun recognizing gig workers as employees in certain contexts, extending labour protections to them. These examples highlight the importance of adapting laws to modern work structures. Many platforms voluntarily adopt internal grievance mechanisms for gig workers, though these are not always legally mandated or as robust as the POSH framework.
The Bottom Line
The POSH Act is a cornerstone of workplace safety in India, but it hasn’t kept pace with the gig economy. Millions of gig workers, particularly women, remain unprotected in the face of harassment. Amending the POSH Act to include gig workers is not just a legal necessity—it’s a moral one. By addressing these gaps, India can set an example for the world, ensuring that no worker—whether employed traditionally or in the gig economy—is left vulnerable.
The gig economy is here to stay. It’s time our laws caught up.
Authored by
Arshia Kumar, Legal Intern