By Anuradha Gandhi and Isha Sharma
The gig economy has gained prominence with the rise of digital platforms, especially post the COVID-19 pandemic. Such platforms conveniently connect gig workers with clients/customers seeking specific services, making gig work an attractive option for both parties. According to a report published by the payment-processing corporation MasterCard, global transactions associated with the gig economy will grow by 17% per year to about $455 billion by 2023.
“The gig economy involves the exchange of labour for money between individuals or companies via digital platforms that actively facilitate matching between providers and customers, on a short-term and payment-by-task basis,” according to the UK government.
With convenience comes a major downside because gig workers often operate in the grey area of employment. This problem becomes even more prominent when female gig workers experience sexual harassment in the course of their work but don’t find the correct means to seek justice.
Who is a gig worker?
A gig worker is someone who takes up a temporary job, typically as an independent contractor. The nature of the work is short-term and is characterized by a flexible work arrangement. A gig worker generally enters into a formal agreement with on-demand companies or clients to provide services. Gig work includes several types of short-term projects that are facilitated by digital platforms or app based services.
The Code on Social Security, 2020 [Section 2(35)] defines a gig worker as ‘a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationships.’
In this technology era, gig workforce includes ride-sharing drivers, food delivery couriers, freelance writers, graphic designers and other service providers who offer their services on a project by project or task based basis. With millions of workers around the world embracing the flexibility and autonomy of the gig work culture, it has opened the door of unlimited professional opportunities for people with diverse skillsets.
Women in the gig economy
Women gig workers contribute quite significantly to this sector of the economy due to the flexibility and remote-working models it offers. Niti Aayog’s report titled ‘India’s Booming Gig and Platform Economy’ notes that, ‘There is an emerging positive trend that suggests women are more likely to take up platform jobs after their education and marriage.’
This type of work ensures financial stability and expands career prospects for females. The major downside, however, is that an increasing number of women in the gig economy complain about sexual harassment during the course of their work. Honeybook, a platform for freelance events-industry worker, conducted a survey and found that 54% of freelance respondents reported being sexually harassed at work. This points to the fact that online platforms that facilitate such work must take responsibility for instances of sexual harassment.
Sexual harassment of gig workers in India
Sexual harassment is a deeply ingrained problem affecting gig workers across various sectors, including ride-hailing, food delivery, freelance work, short term contract works and other services. The gig workforce is on boom at present as it empowers alternative to conventional workspaces which was restricted to four walls of a building and permits workers to work in flexible working hours as per their convenience and suitability. However, the absence of legal protections and formal employer-employee relationship leads to ambiguity as and when sexual harassment takes place and thereby exacerbating the harassment faced by female workers. The gendered power dynamics and inequality not only perpetuates a hostile working environment but also limits the economic potential of women, which makes up a significant portion of the gig workforce.
In India, gig workers often fall into a legal grey area as they are not classified as employees or independent contractors. If any case of sexual harassment faced by a gig worker arises, the platform does not get involved in it on the mere ground that there exist no formal employee-employer relationship.
Similarly is the case of platform workers who connect customers with online intermediaries and facilitate transactions in consideration of certain fee or commission, are outside the purview of traditional employment and work for short term basis.
The deprivation of basic human right i.e., right to life, personal liberty and safe working environment has impelled the gig workers to file a Public Interest Litigation (PIL) in the Hon’ble Supreme Court seeking social security benefits from food delivery apps and online aggregators. The said petition was filed by the Indian Federation of App-based Transport Workers (IFAT) seeking the inclusion of gig workers as “unorganised workers as per the report.
“The mere fact that their employers call themselves “aggregators” and enter into the so-called “partnership agreements” does not take away the fact that there exists a jural relationship of employer and employee; master and servant and worker within the meaning of applicable laws,” the petition added.
With an urge in rise of sexual harassment cases on gig workers and platform workers, it has become crucial to categorize gig workplaces as a workplace, as defined under the POSH Act.
Before answering to the question whether gig workers are covered under the ambit of POSH Act or not, it is crucial to have a look into some of its provisions.
India began acknowledging the issue of sexual harassment at the workplace in the last century. In 1997, the Supreme Court introduced the Vishakha Guidelines which were a set of procedural guidelines that could be followed in the case of a sexual harassment case at the workplace. By 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (hereinafter referred to as the POSH Act) was enacted to address the issue of sexual harassment women face at work.
The definition of ‘employee’ was unique in the sense that it was extremely inclusive. Section 2(f) of the POSH Act makes it evident-
“Employee means a person employed at a workforce 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”
Further, Section 2(a) of the POSH Act defines “aggrieved woman” as a woman of any age, whether employed or unemployed, who alleges to have been subjected to any act of sexual harassment….”
The above two provisions are sufficient enough to be extended to be applicable in case of gig workers as well and therefore, the employer who is appointing such gig workers or the platform providers are entrusted with a responsibility to provide a safe working environment. Hence, the victim may file a complaint before the Internal Committee of an organisation. Further, she is also entitled to file a police complaint at the nearby police station simultaneously.
On February 19, 2021 a landmark ruling was passed by the Supreme Court dismissing the appeal filed by the Uber BV concerning the employment status of private hire vehicle drivers through the Uber smartphone application (“the Uber app”). The main concern raised in this case was whether an Uber driver is a “worker” for the purpose of employment legislation. Uber relied on the wording of the written contract executed between them and the drivers, stating that Uber was an “independent company” and that the drivers were the “customer” (of Uber) who received access to the app in return for a service fee. The Supreme Court dismissed the Uber’s plea and upheld the original finding that Uber drivers are workers.
As per the report, in February, 2023, a notice was issued to one of the known delivery company by the Delhi’s Consumer Disputes Redressal Commission seeking INR 50 lakhs damages for negligent hiring as one of its deliver boy was accused for committing an act of sexual harassment. This notice broke the misconception of the online aggregators who believe that they can wash their hands off of the misbehavior and misconduct of their delivery partners.
In this way, the POSH Act has paved the way for delivery apps in particular to set in place a policy against the prevention and redressal of sexual harassment at the workplace for female delivery executives. With the onboarding of women in the traditionally masculine space of delivery, online platforms that are an integral part of the gig economy have introduced various methods through which sexual harassment at the workplace can be curbed in the case of female gig workers. These include:
In the case of an instance of sexual harassment, the female delivery executive (DE) can use the SOS Emergency contact number for support. They can do so not only in the case of a colleague sexually harassing them but also if the perpetrator is a customer or restaurant staff.
Female DEs can also avail the option of declining deliveries in an area they apprehend to be unsafe, without the fear of having to answer questions or face any disincentives.
The issue of sexual harassment among gig workers in India is a distressing and deeply concerning reality that demands immediate attention and action. As our society continues to embrace the gig economy as a viable means of employment, it is crucial that we confront and address the vulnerabilities and risks faced by these workers in day to day basis.
The testimonies and stories of gig workers who have experienced sexual harassment underscore the urgent need for comprehensive policies and robust legal frameworks that protect their rights and dignity.
In our collective efforts to build a more inclusive and equitable society, it is imperative that we recognize the invaluable contributions of gig workers and treat them with same respect and protection that all individuals deserve. Only by working together to combat sexual harassment can we forge a future in which gig workers can thrive in an environment free from fear and discrimination.