Introduction
Most labour laws in India were framed with physical workplaces in mind, prescribing rules to regulate conduct and ensure safeguards within offices, factories, construction sites, and other tangible locations connected with the workplace. The underlying assumption has traditionally been that the workplace is a fixed, physical space where interactions occur in person.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act") takes a more comprehensive and forward-thinking stance. Since its inception, the definition of "workplace" under the PoSH Act has extended well beyond the four walls of an office, covering client sites, off-site meetings, and work-related travel. However, over the years, the concept of workplace has further evolved. This shift has been especially more pronounced since the pandemic, as digital communication has largely replaced in-person interactions. With the increasing prevalence of remote work, this definition now naturally includes interactions that happen in digital spaces, alongside those in physical environments.
Internal Committees ("ICs") of organizations have adapted to this change to include digital work-related interactions. However, a common question still arises: Can social medial platforms that are not created for work, like Facebook and WhatsApp, also be considered part of a workplace?
A recent Delhi High Court judgment1 has reaffirmed this position, holding that private WhatsApp and Facebook communications can constitute workplace interactions. If these messages involve inappropriate behaviour, they fall under the PoSH Act's jurisdiction and can be reviewed by the relevant IC just like incidents that occur in a physical workplace.
Facts of the case
This case involved 4 (four) separate complaints of sexual harassment made against a college professor (the Petitioner). The complaints alleged that the professor made sexual advances and innuendos through Facebook Messenger and WhatsApp chats.
Following these complaints, the IC conducted an inquiry and found the professor guilty of sexual harassment. The IC recommended compulsory retirement and directed the professor to pay INR 10,000 to each complainant as compensation for their suffering. The college accepted and implemented these recommendations.
The professor challenged the IC's report in the present case. Among other grounds, he argued that the IC had relied on private WhatsApp and Facebook messages exchanged between him and the students. He claimed that these were personal conversations and, therefore, the alleged conduct did not occur in a "workplace" under the PoSH Act.
Dehi HC's judgement
While the court did not delve deeply into the issue raised by the Petitioner, it relied on the WhatsApp and Facebookmessages to conclude that the Petitioner had made inappropriate advances of a sexual nature. The Court also referred to the IC's report, which had addressed the Petitioner's objection. In this regard, the IC held that, since the Petitioner had shared his phone number with the students in a professional context, all subsequent interactions through WhatsApp and similar platforms would fall within the definition of a "workplace" under the PoSH Act. The IC further observed that these social media exchanges were an extension of the work relationship and not the result of any personal friendship between the Petitioner and the complainants.
Analysis and points for ICs
- Extended jurisdiction: The IC's jurisdiction should be understood to cover digital interactions, even if the individuals are not physically in the same location.
- Context is the key:Focus should be on the context of the interaction, not the platform itself.
- Evidence matters: Keep records like screenshots or chat exports. Make sure they are stored safely and privately during the investigation.
- Same process as face-to-face cases: Follow the PoSH timelines and rules exactly the same way you would for in-office incidents.
- Update policies and training: Make it clear in workplace policies that inappropriate behaviour on digital platforms is not acceptable. This extends beyond company sanctioned platforms like email, video conferencing tools or a company intranet.
Conclusion
This ruling sets an important standard for ICs dealing with complaints in our digital world. It makes it clear that inappropriate behaviour through digital channels can be considered workplace sexual harassment, especially when professional lines are blurred. Now, ICs have a legal precedent to look into and address virtual harassment, as long as they follow due process. By updating their internal procedures and policies to reflect this ruling, ICs can take a proactive approach in creating safe and respectful environments, whether in person or online.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
