Sarah Unhelkar I 18th March 2025
Prevention of Sexual Harassment in the “Gigverse”
Today, there are approximately 7-8 million gig workers in India, a number expected to grow at a CAGR of 12% to reach 23-25 million by 2030, constituting 4.1% of the total workforce. Gig workers encompass individuals engaged in income-earning activities outside traditional employer-employee relationships. Even though used interchangeably, gig workers and platform workers represent two entirely different concepts, the former includes both platform workers, whose work is based on online software apps or digital platforms, and non-platform workers, such as home-based workers or construction workers, who may work independently or part-time. Astonishingly, only 20-30% of women are engaged in gig work. Given the flexibility in work structure and timings that platform-based gig work offers, gig work can transform women’s employment patterns and improve their participation in the workforce. Female participation in a platform-based economy has been limited due to various structural barriers like prejudice, job insecurity, and the threat of “sexual harassment”.
Given the vulnerability of female employees in the context of gig work which mostly involves direct contact with the service recipient in jobs like food and grocery delivery, cab services, and parlor services, strict policies and compliance with the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) become pivotal to ensure safe working space for women.
So far, there has been no constituent law or policy that regulates gig work. The Proposed Social Security Code (2020) defines the term “gig worker” as a person who performs work or participates in a work arrangement and earns from such activities outside of the traditional employer-employee relationship. A cursory review of the Labour Code suggests an inherent statutory distinction between gig/platform workers and workers in general. This distinction may result in benefits that are similar in nature but vary in magnitude for both categories of workers. Additionally, certain gaps that result from this distinction could leave gig/platform workers excluded from certain essential labor rights, such as the advantages of being part of a registered trade union, the ability to have their disputes addressed as industrial disputes, and even the application of POSH Act becomes tricky.
While the POSH Act is liberal and does not require an ‘aggrieved woman’ to be an employee, it excludes platform workers providing services in ‘dwelling places or houses’ (such as urban clap and yes madam employees who provide maintenance and parlor services at the client’s residence) from its scope. This combined with the ambiguity of the employer-employee relationship in the gig economy, makes female workers vulnerable to sexual harassment. This essay first explores the contemporary dynamics of the employer-employee relationship within the gig economy, and secondly, analyses the Karnataka High Court’s judgement in ANI Technologies v. State of Karnataka (“ANI Technologies”) to understand the interplay of the POSH Act and “employer-employee” relationships. It concludes by proposing solutions to optimise the implementation of the POSH Act for the maximum benefit of female workers.
Understanding the Employer–employee Relationship in Gig Economy
In Dharangadhara Chemical Works v. State of Saurashtra the Supreme Court discussed the characteristics of a ‘workman’. The Court stated that “the broad distinction between a workman and an independent contractor lies in the fact that while the former agrees to do the work himself, the latter agrees to get other persons to do the work.” Additionally, the Supreme Court, in DC Dewan Mohideen Sahib v. The Industrial Tribunal, Madras (“DC Dewan”), held that the categorisation of a worker/an employee should not be interpreted solely on the face value, but autonomy of the “independent contractor” should be established. In corollary, in Balwant Rai Saluja v. Air India, the Court, after meticulous examination, laid down some relevant factors for establishing an employer-employee relationship, including “(i) who appoints the workers; (ii) who pays them salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action; (v) whether there is continuity of service; and (vi) the extent of control and supervision, i.e., whether there exists complete control and supervision.”
In case of gig work, answering these questions becomes difficult as platforms have partial control over the workers, for example, workers decide their working hours and timings, and they often exercise the discretion of accepting or rejecting the work. Multi-homing (simultaneously working at different platforms) is another hurdle in determining the employer-employee relationship.
To address these challenges, the Code on Social Security 2020 has been proposed, aiming to establish social security schemes specifically for gig workers and guidelines for platform aggregators. The Code defines "gig worker" and "platform worker," recognizing their unique roles in the labor market. It provides for the formulation of social security schemes that encompass essential protections such as life and disability coverage, accident insurance, health and maternity benefits, and old-age protection. Furthermore, it mandates the establishment of a Social Security Fund, which will be financed through contributions from aggregators amounting to 1-2% of their annual turnover. This fund is intended to support welfare schemes that benefit gig workers directly. Importantly, the Code also includes provisions for compulsory registration of gig workers and platform workers on an online portal, enabling them to access these benefits. This registration process is designed to facilitate their enrolment in social security schemes and ensure that they receive the protections they deserve. While the provisions under the Code are yet to come into force, it represents a significant step towards recognizing gig workers as a vital part of the workforce and providing them with necessary legal protection. The inherent ambiguity in defining the employment status of gig workers creates significant challenges in extending existing employee benefits and statutory schemes to this growing segment of the workforce. This ambiguity often leaves gig workers in a precarious position, devoid of crucial legal protections and welfare entitlements that are otherwise guaranteed to traditional employees. However, despite these definitional hurdles, there remains a pressing need to ensure a safer and more equitable working environment for gig workers, particularly with regard to workplace harassment.
In light of this, the following section delves into the ways in which protection under the POSH Act can be effectively extended to gig workers. By addressing both the interpretative challenges and the broader policy implications, this discussion aims to propose a framework that aligns the intent of the POSH Act with the realities of modern work structures.
The POSH Act and Gig Workers
Recently, in 2024 the Karnataka High Court examined the interplay of the POSH Act and employer-employee relationships in the gig economy. The petitioner was traumatized and disturbed by the incident and subsequently raised her grievance with OLA, which merely blacklisted the driver and sent him for counseling. The petitioner eventually filed a criminal complaint with the Cubbon Park Police Station, Bengaluru. However, OLA claimed that the driver was not registered with the Platform and this was an incident of “driver swapping”. While acknowledging the fact that driver swapping is a common issue that leads to many cases of sexual harassment, OLA refused to accept the petitioner’s legal notice demanding action against the driver under the POSH Act. OLA stated that it lacked “jurisdiction” to investigate the matter as the drivers were not employees of OLA but independent contractors. Hence, the petitioner filed a writ petition at Karnataka High court under Article 231.
OLA’s primary argument was that its drivers are independent contractors rather than “employees.” Consequently, OLA contended that the drivers cannot be subjected to proceedings before an Internal Complaints Committee (ICC), as such proceedings typically apply only in employer-employee relationships. To support this, OLA relied on its subscription agreement, emphasizing that drivers are free to work for other platforms and are not bound exclusively to OLA. The company further asserted that the relationship between OLA and its drivers is structured as an independent contractor and principal-to-principal arrangement. Unlike a traditional employer-employee relationship, OLA argued, the company does not exercise significant “control” over the drivers’ work or behavior.
However, the Court concluded that the POSH Act aims to include all possible means and modes of engagement of a person as an “employee” by the “employer” in furtherance of its business and related objectives. While looking at the subscriber agreement between OLA and the drivers, the Court ruled that contrary to its argument, OLA exercises complete supervision on its drivers as they did not have the discretion in determining fares, managing bookings, deciding routes, and interacting with users. Drivers were so tightly controlled that they were even prohibited from using their own mobile phones while providing services. Moreover, OLA maintained complete control over the drivers’ revenue, with the payment of incentives to driver-subscribers being entirely at the company’s discretion.
Hence, the Court ordered OLA to pay a compensation of Rs. 5 Lakhs to the aggrieved party.
Conclusion
Gig work provides women with opportunities for flexible employment, but it also exposes them to unique challenges, including the lack of clarity about their legal protections under existing labor laws. These gaps leave female gig workers, such as drivers, beauticians, and delivery personnel, particularly susceptible to exploitation and harassment. Addressing these gaps requires rethinking by important stakeholders like the Government, Courts, and Employers on how existing laws can be applied to the Gig Context ensuring that female gig workers do not fall prey to Statutory ambiguity.
The interpretation of the term ‘employer-employee relationship’ in ANI Technologies for instance, can be extended to other similar contexts. For example, the protection of female drivers, beauticians, or other workers providing various services at a client’s place. Hence, the scope of ‘workplace’ should be broadened to encompass this category of workers. This was emphasised in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, where the Supreme Court ruled that the definition of workplace should be wide enough to ensure that any area where a woman could be subject to sexual harassment is included within the definition.
Secondly, platforms such as Swiggy have taken appropriate actions to safeguard the Security of their female employees and it serves as an example for other platforms to take proactive measures.
Lastly, the government must ensure the revival and upgradation of the Local Complaint Committee (LCC). The POSH Act mandates the constitution of Local Complaint Committee (LCC) at the district level which extends to female workers from unorganized sectors and technically gig workers would fall within its ambit. However, the condition and working of LCCs is not satisfactory. Strengthening the functioning of LCCs should be a top priority, as it would ensure better accessibility to justice for vulnerable workers, enhance awareness about their rights, and provide an effective mechanism to address complaints promptly and fairly
The crux of the POSH Act is to protect the safety and well-being of female employees at their workplace. Rigid or overly technical interpretations of the Act would undermine its fundamental purpose. Therefore, adopting a broad interpretation of the Act in favour of female employees would serve the interests of justice.