The dynamic workplace in a

work from home Era:

Operation of the Sexual
Harassment of Women at
Workplace Act, 2013

Columns

In these unprecedented times, work from home is slowly but steadily becoming
the new normal. The pre COVID-19 era saw working from home as an exception
to the general rule in most sectors. However, the prevalent situation has
compelled most sectors to give serious consideration to the option of working
from home on a long term basis.

With lockdown orders in place and uncertainty looming large, companies have
started evaluating implementation of work from home for a large proportion of
their employees. Tata Consultancy Services (TCS) has recently announced that
75% of 4.5 lakh of their employees to permanently work from home by the year
2025.

In this article, we delve into the applicability of the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in a work from
home set up. We delve into the extent of applicability of the Act by examining the
scope and ambit of the term ‘workplace’ in the light of relevant judicial
pronouncements.

Legislative Framework
The Act was the country’s first legislation that aimed to provide protection to
women against sexual harassment at their workplace and provide a mechanism for
redressal of complaints of sexual harassment. Section 3 of the Act provides that
no woman shall be subjected to sexual harassment at any ‘workplace’.

It is apparent that an important facet that requires determination is the scope of

what comprises a ‘workplace’ under the Act. Any misconduct in question that
may qualify as sexual harassment in terms of the Act, but which occurs outside
the workplace, may not typically attract the provisions of the Act.

The definition of ‘workplace’ under Section 2(o) of the Act, is an inclusive and
non-exhaustive definition and includes any place visited by the employee arising
out of or during the course of employment, including a dwelling place or a house.
This allows discretion to the relevant adjudicating authority to determine the exact
scope of the ‘workplace’ in the facts and circumstances of each case, as and when
such determination becomes necessary.

Given the nature of the legislation and the protection it seeks to extend to women,
it may reasonably be assumed that the scope of ‘workplace’ shall usually be
construed liberally and not in a restrictive manner.

Even otherwise, as a socially benevolent legislation intended to extend protection

to women at workplaces, the Act would attract the application of the principle of
‘notional extension’, a principle of law that has been used by courts time and
again in the interpretation of beneficial legislation, to serve the objective of the
legislation.

Notional extension of ‘workplace’ under employment laws

On a perusal of available literature and judicial precedents, it appears that the

theory of ‘notional extension’ has been used by courts while interpreting laws
governing compensation to be awarded to employees or workmen in case they
sustain injuries during the course of their employment. A prerequisite under the
applicable laws governing the award of compensation to employees/workmen by
an employer was that the incident must have arisen “in” or “out of” the course of
employment.

Therefore, the question that often arose in such cases, to determine the liability of
an employer, was whether or not such causal relationship between such incident
and the employment could be established. Such determination required, in some
cases, the examination of what constituted a workplace for the purpose of
employment or engagement of the employee or workman.
In this context, in the landmark case of Saurashtra Salt Manufacturing Co. v. Bai
Valu Raja & Ors., the Supreme Court opined on the applicability of the theory of
‘notional extension’ of the employer’s premises. It was held that the theory of
notional extension was applicable to an employer’s premises so as to include an
area which the workman passes and re-passes in going to and in leaving the actual
place of work.

The Supreme Court also clearly set out that the scope of such extension of
workplace would have to be determined in the facts and circumstances of each
case. However, it can be reasonably concluded that an employer’s premises were
not restricted to the strict perimeters of the office space and could be extended
beyond such physical territory.

Similarly, in the case of Sadgunaben Amrutlal and Ors. v. The Employees’ State
Insurance Corporation, Ahmedabad, while discussing a claim under the
Employees’ State Insurance Act, 1948, the High Court of Gujarat observed that
recourse may be had to the notional extension theory in order to extend both
‘time’ and ‘place’, in a reasonable manner, in order to ascertain whether an
accident to a workman may be regarded as in the course of employment and to
effectuate the intention of the Legislature.

Notional extension of ‘workplace’ under the Act

Pertinently, the phrase “out of or during the course of employment” has also been
included in the definition of 'workplace' under the Act.

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India,
the Delhi High Court observed that the aim and objective of formulating the
Vishaka Guidelines [propounded in Vishaka v. State of Rajasthan] was to ensure
that sexual harassment of working women is prevented and any person guilty of
such an act is dealt with sternly.

Keeping in view the objective of the judgment, a narrow and pedantic approach
cannot be taken in defining the term ‘workplace’ by confining the meaning to the
commonly understood expression ‘office’.

"It is imperative to take into consideration the recent trend which has emerged
with the advent of computer and internet technology and advancement of
information technology. A person can interact or do business conference with
other person while sitting in some other country by means of video-
conferencing...In a case like, this if such an officer indulges into an act of sexual
harassment with an employee, say, his private secretary, it would not be open for
him to say that he had not committed the act at workplace, but at his residence
and get away with the same."
Noting the above, the High Court observed that the following factors would have
bearing on determining whether the act has occurred in the ‘workplace’:

(a) proximity from the place of work;

(b) control of the management over such a place/residence where the working
woman is residing; and

(c) such a residence has to be an extension or contiguous part of the working

place.

Similarly, in its decision in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur

University, when the issue of the scope of workplace arose, the Bombay High
Court deemed it necessary to interpret the scope of workplace to be beyond the
literal physical workplace. In this background, it was held that the mode and
manner in which the basic concepts are exploited by it, leave no manner of doubt
that the design of the Parliament is to provide safety and security to women at all
workplaces. When the intention of the Parliament is very clear, it becomes even
more evident that the definition of workplace under the Act is inclusive and again
deliberately kept wide to ensure that any area where women may be subjected to
sexual harassment is not left unattended or unprovoked for.

Hence, any woman at her workplace cannot be disrespected by anybody.

Similarly, she cannot also be disrespected when she is at the workplace of the
accused. This is further corroborated by Section 19 of the Act, which mandates
that every employer has to provide a safe working environment for a woman at
the workplace which includes even safety from the third persons coming into
contact with her at the workplace.

In fact, in addition to the decision of the Delhi High Court in Saurabh Kumar
Mallick, it would appear that the courts have given an expansive interpretation to
what would constitute workplace as and when the need arose to extend its ambit
in the interest of protection of women in their workplace, even before the Act
came into force.

For instance, in the case of Ayesha Khatun v. The State of West Bengal & others,
the Calcutta High Court had recognized that even though workplace had not been
defined either in the Vishakha guidelines or in the Vishakha judgment, a logical
meaning should be given to the expression ‘workplace’ so that the purpose for
which those guidelines have been framed, is not made unworkable.

"Workplace, in my view, cannot be given a restricted meaning so as to restrict the

application of the said guidelines within the short and narrow campus of the
school compound. Workplace should be given a broader and wider meaning so
that the said guidelines can be applied where its application is needed even
beyond the compound of the workplace for removal of the obstacle of like nature
which prevents a working woman from attending her place of work and also for
providing a suitable and congenial atmosphere to her in her place of work where
she can continue her service with honour and dignity."

Comments

With the concept of virtual offices and work from home taking precedence in light
of the lockdown orders and with the aid of applications like Zoom, Microsoft
Teams and Skype etc, working in physical spaces and proximity has taken a
backseat. This raises the question of whether our homes or virtual reality space
qualifies the test to be recognised as a ‘workplace’ keeping in mind the spirit of
the Act.

Our understanding is that any act of sexual harassment effected virtually in a

home working space can be included in the notional definition of a ‘workplace’.
The definition of workplace under the Act, itself envisages the concept of notional
extension, and such legislative intent has also expressly been recognized by the
Courts.

While the decision of the Delhi High Court in Saurabh Kumar Mallick pre-dates
the existence of the Act, the same concept has been imported to be specifically
included under the Act through the use of phrases such as “any workplace” in
Section 3 and “out of or during the course of employment” in Section 2(o) of the
Act.

In the virtual world, there is a thin line between such harassment that may occur
in the course of work or employment and that which may be perceived as
harassment while operating outside the physical workplace. Having said that, the
scrutiny of facts and circumstances of any complaint arising in case of employees
who are working from home would be necessary to determine whether or not such
complaint falls under the purview of the Act, keeping in mind the dynamic scope
of ‘workplace’.

Jeevan Ballav Panda is a Partner, Shalini Sati Prasad is a Senior Associate and
Meher Tandon is an Associate with the Dispute Resolution team of Khaitan & Co.
They can be reached at jeevan.ballav@khaitanco.com,
shalini.prasad@khaitanco.com and meher.tandon@khaitanco.com, respectively.
Views expressed in this article are personal and are not to be attributed to the
Firm in any manner.