Safety of Women in the Gig Economy

​The Indian gig economy, having interestingly burgeoned during the CoVID-19 pandemic (pandemic), is only set to grow in the coming years. The latest Economic Survey hails India as "one of the largest countries for flexi-staffing in the world", and digital platforms as "enablers" for employment generation. The gig economy may therefore, offer a strong impetus to India's post-pandemic economic recovery. 

A recent UNDP study suggests that women have great potential to join the gig economy in the coming days, given its flexible and remote-working characteristics. The pandemic lends further credence to this prediction, with a spike in women workers joining the gig workforce, in recent times.

Women's Safety in the Gig Economy:

While the Indian gig economy sets a promising stage of work opportunities, its rapid expansion is worth noting. Resultantly, certain gaps within this work-model were inevitable, also, especially given the fairly unregulated space it has been operating out of, thus far.

One such concern is the protection of women gig and platform workers (giggers) from workplace sexual harassment (SH). This is crucial, given the informal nature of the gig economy, which places giggers outside the purview of traditional employment, rendering them especially vulnerable. 

On this, conventionally 'low-skilled' gigs (cleaning, beauty, transport, delivery) allude to workers' higher susceptibility to SH- women with little or no education, who tend to opt for such gigs, may be unaware of SH's unacceptability^[1]. Further, assignment of work on app-based platforms already being gendered may discourage such workers from complaining, for fear of losing more work.  

Skilled gig workers, like freelancers, independent consultants or cloud workers (IT, media, marketing) may encounter their own set of challenges given their inaccessibility to organizational support, like a human resources department. Further, remote-working culture prevalent in such work, and perpetuated by the pandemic, puts such workers at high risk of online SH.

On this, while National Commission for Women (NCW) instructed employers to frame appropriate remote-working rules for their employees, skilled gig workers are unaccounted for. In a recent judgment^[2], online sexual harassment of a subordinate by her superior was considered "workplace" harassment, thereby widening the scope of the workplace. This, too, however, is restrictive, as it addresses SH complaint made at a traditional workplace.

POSH's applicability to giggers:

The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) protecting working women from SH, emanates from a 1997 Supreme Court judgment which observed that "The fundamental right to carry on any occupation, trade or profession depends on availability of a safe working environment". Thereafter, guidelines on the issue were framed, for employers to address workplace SH issues of their women workers, until POSH was enacted.

POSH is remarkable, insofar as it protects women workers from all walks of life, including those working on regular, temporary, ad-hoc or daily-wage basis. Such workers are referred to as "employees", whose employment terms are express or implied. Giggers, however, are not employees, but independent workers, having assumed a unique position in the Indian labour-force, defined under the recently enacted Code on Social Security, 2020 (CSS) as those who perform work outside the ambit of traditional employment relationships.

Platform workers, for instance, work in partnership with "aggregators", namely digital intermediaries under CSS who facilitate transactions between platform workers and buyers or users of a service, in return for a fee. Platform workers are therefore termed as "third party service providers", "third party providers", "third party delivery partners" etc. Similarly, skilled gig professionals are self-employed freelancers or consultants working with clients, possibly on several short-term projects, simultaneously.  

Neither gig nor platform workers, therefore, can be classified as "employee" under POSH. 

Who shall protect giggers from SH?

Amending POSH to make it applicable to giggers may be tricky, as the employer's role under POSH is critical- they must provide requisite resources towards prevention of, and in case of an incident, redressal of SH, including establishment of an "Internal Committee"^[3] (IC) for redressing SH complaints. Under CSS, however, giggers have no employer. Whom such responsibility may be attributed to, in case of giggers, were POSH made applicable to them, is therefore anybody's guess. 

Under city taxi schemes of Delhi, Mumbai and NCR "taxi aggregators" "shall ensure stipulated mechanism for protecting rights of women employees" per POSH. Contrastingly, "drivers" (read giggers, including women giggers) for taxi aggregators are only required to attend gender sensitization refresher trainings, annually. Further, under Companies (Accounts) Amendment Rules, 2018, a registered "company" shall constitute an IC as mandated under POSH. While this applies to aggregator companies too, an aggrieved gigger can approach such company's IC only where the alleged perpetrator is an employee of the aggregator. Similarly, aggrieved giggers may approach ICs of other companies only against employees of such companies. A challenge for an aggrieved gigger, with this structure, lies in the identification of the company/organization of the alleged perpetrator. Further, POSH may not directly apply where gig services are rendered at someone's residence.

Requiring aggregator-partners to assume the employer's role for giggers implies certain challenges, including higher operating costs and need for better resource management in such companies. Besides, this indicates establishment of an employment relationship between aggregators and platform workers, thereby conflicting with the legislative position on this (see CSS), as well as the business model the gig economy is predicated on. The recent petition before the Apex Court seeking social security benefits for giggers as employees of aggregators, under existing social security legislation, complicates the matter further.

Instead, remit of the "Local Committee" established in every district under POSH may be expanded to include giggers' SH complaints. Currently, the Local Committee addresses complaints only from establishments having less than ten workers and no IC, or where the complaint is against the employer.

On a slightly different note, discussions are rife on the link between violence and workplace SH, and occupational safety and health (OSH). As a recent example, the ILO has enforced Convention No. 190 on 'Eliminating Violence and Harassment in the World of Work' recognizing violence and harassment, including workplace SH as likely to result in physical, psychological, sexual or economic harm; these, clearly, are OSH concerns.

On this, scope of the recently enacted Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code) may be explored to accommodate SH concerns relating to giggers. OSH Code's social security fund for welfare of unorganized workers, for instance, may be utilized towards creating an instrument like She-Box (established to redress SH complaints under POSH) for giggers, in collaboration with NCW. Further, NCW may, along-with aggregators, regularly organize gender sensitization and SH awareness programs, self-defence classes and training workshops for giggers. A government app providing giggers with tools to equip themselves with requisite knowledge and training on the issue, may also be developed.     

Sexual harassment policies framed by aggregators, and shared with both platform workers, and buyers/users of service, may also be of critical value. California's Proposition 22^[4] law initiated by rideshare and delivery aggregators, includes under its "benefits" to independent contractors (platform workers), development of sexual harassment policies and mandatory safety training for drivers. Under this, aggregators shall conduct thorough investigations and reach reasonable conclusions on SH complaints. Although Proposition 22 was recently rendered unconstitutional, the broader idea it floats of aggregators extending feasible support to platform workers against workplace SH may be worth exploring.

Conclusion

With mainstreaming of the gig economy in India, especially during the pandemic, safety of women giggers, who are key to the gig economy's growth, given its flexible and remote working nature, demands urgent consideration. According to an on-demand staffing platform, when women feel safe, secure, and valued, they are more likely to join the gig economy.

On the law, "employee" status should not be a prerequisite for ascertaining a worker's protection from SH. As the Supreme Court observed in 1997, an unsafe work environment is an affront to the fundamental right of carrying on any occupation, trade or business. This right extends to giggers as well, irrespective of their employment status.

However, the entire responsibility for this should not be pinned on aggregators, who inherently operate on a specific business model guided by innovation and competition, and not traditional employment rules. Collective action on this, by all stakeholders involved, but especially the government and its agencies, in whose interest is the success of the Indian gig economy post-pandemic, is the need of the hour.

Soumya Jha is a Research Fellow at Shardul Amarchand Mangaldas & Co, New Delhi, India.  She would like to thank Ms Pooja Ramchandani for her insightful comments on earlier drafts. All views expressed are personal.