With the rise of the gig economy and the growing influence of aggregator platforms—whether food delivery services, online marketplaces, or other e-commerce service platforms—it is imperative to examine whether these evolving e-commerce platforms are encompassed within the scope of the “Prevention of Sexual Harassment of Women at Workplace Act, 2013” (POSH Act). This Act is a comprehensive legislative measure designed to address and prevent sexual harassment within workplaces, specifically affording protection to women against harassment in professional settings.

Applicability of the POSH Act to Online Aggregators

A question that emerges is whether aggregator platforms, operating digitally, can be considered “Employers” under the POSH Act. Aggregators, as intermediaries, facilitate connections between service providers and consumers through digital technology and are responsible for ensuring that all parties involved, whether service providers or customers, are protected from sexual harassment.

Since aggregators function as digital platforms, they may be classified as principal employers under the POSH Act. Section 2(g) of the Act broadly defines “Employer” to include individuals or entities responsible for the management, oversight, and control of the workplace.

Liability of Online Aggregators

In their capacity as overseers or operators of the platform, aggregators may be deemed principal employers, thus bearing obligations under the POSH Act. Specifically, principal employers must ensure a harassment-free environment for employees, visitors, and third-party service providers. This includes implementing a redressal mechanism and initiating appropriate action against any perpetrator of harassment, as specified in Section 19 of the POSH Act. This proactive approach not only fosters a safer work environment but also promotes productivity, efficiency, and overall organizational growth.

Aggregators sometimes attempt to avoid liability by relying on the general principle that individuals are liable for their own wrongful acts. However, they overlook the applicability of the doctrine of vicarious liability in such cases, a legal principle holding a principal party accountable for actions or omissions of another party (such as an employee or agent) performed within the scope of their employment or agency.

For instance, with online aggregators like Uber or Ola, the concept of vicarious liability arises when an independent contractor, such as a driver, is accused of negligence or misconduct while delivering services via the aggregator’s platform. The extent of liability under the POSH Act, however, depends on an analysis of the relationship between the involved parties. Since the relationship between a driver and a rider stems from contractual terms, incidents of sexual harassment occurring therein may be interpreted as falling within the definition of “workplace” under the Act.

To fulfill their legal responsibilities, aggregators must implement a POSH policy, establish a mechanism for addressing complaints of sexual harassment, and provide regular training and awareness programs for their service providers. Failure to comply with these obligations can expose aggregators to penalties under the POSH Act, which may adversely affect their reputation, goodwill, and financial sustainability.

Case Examples Illustrating Aggregator Liability under the POSH Act

Uber (2017): In a high-profile case, Uber faced allegations of sexual harassment that eventually led to the resignation of CEO Travis Kalanick. A former engineer, Susan Fowler, published a blog post describing her experiences of sexual harassment and gender discrimination at Uber. The post ignited widespread scrutiny, prompting numerous women to come forward with similar accounts, which ultimately led to a comprehensive investigation into Uber’s corporate culture. The investigation recommended improvements to company policies, diversity and inclusion initiatives, and a structured mechanism for handling sexual harassment complaints.

Food Delivery Aggregator (2021): In 2021, one of India’s leading food delivery platforms faced a POSH Act lawsuit after a delivery executive allegedly made unwelcome sexual advances and inappropriate comments toward a female customer during a delivery. The company, as the aggregator, was held accountable for the actions of its delivery executive. An Internal Complaints Committee (ICC) found that the company had failed to provide a harassment-free environment for both customers and delivery personnel. The company was held liable to compensate the aggrieved individual and required to implement necessary measures to prevent similar incidents in the future, including mandated sensitization and training programs for all employees as stipulated under the POSH Act.

Dunzo (2023): In February 2023, the Delhi Consumer Disputes Redressal Commission issued a notice to the company Dunzo, seeking INR 50 lakhs for negligent hiring and alleged sexual harassment by one of its delivery partners. This behavior was deemed a deficiency in service, and the complaint under the Consumer Protection Act was recognized as validly filed before the appropriate forum.

Implications for Online Aggregators under the POSH Act

These cases underscore that aggregators may indeed be held liable under the POSH Act if they fail to prevent sexual harassment on their platforms. They also highlight the necessity for aggregators to adopt robust policies and procedures for preventing and addressing sexual harassment incidents involving service providers or customers on their platforms. By adopting these protective measures, aggregators can contribute to a safer, more respectful work environment and support the broader societal goal of promoting gender equality.

Implementation of various policies by online aggregators to prevent sexual harassment at workplace:

The aftermath of the Uber 2017 case led to a public outcry and significant amendments in their policies, as listed below.

1. Training: Uber made it mandatory for all employees including drivers, to spread awareness of sexual harassment and for prevention and reporting of such incidents. The training covers topics including but not limited to identifying appropriate behavior, responding to complaints and promoting a respectful workplace culture.

2. Anonymous reporting: Uber established a confidential reporting system, a 24*7 hotline for employees to report any incidents of sexual harassment, discrimination, bullying and unprofessional behavior.

3. Investigation: Uber strengthened its investigation process for cases of sexual harassment. It now conducts a thorough investigation of every complaint and the investigation is overseen by a dedicated team.

4. Enhanced Background checks: Uber adopted more stringent background check requirements for drivers and added continuous background checks to ensure that they are maintain safe driving records and do have any criminal convictions

5. Termination for misconduct: Uber made it inevitable that sexual harassment will not be tolerated and it has implemented zero tolerance policy for any employee who engages in sexual harassment or discrimination. The company reserves the right to take disciplinary action against the perpetrator, including but not limited to termination.

6. Implementation of a “no retaliation” policy: Uber made it clear that any employee who reports sexual harassment or other forms of misconduct will not face any sort of retaliation.

7. Transparency and Accountability: Uber has committed to publicly report the incidents of alleged sexual misconduct in hope of establishing more transparency about the issue throughout the ride-hailing and traditional taxi industries.

8. Introduction of new policies: Uber introduced new policies to prevent and address sexual harassment such as code of conduct for riders and drivers, a policy prohibiting romantic relationships between employees and customers. It also provides a 911 assistance button, real time location sharing and two-factor authentication in order to work on improving its culture and preventing harassment and discrimination.

9. Disguised Phone Numbers: After the launching of “Number Masking” a new feature by Ola, Uber also came up with a new feature called “Disguised Phone Numbers” that aims to connect the riders and drivers with an anonymous number, without knowing the actual one. This new feature has been established to enhance security before, during and after ride.

Conclusion

The gig economy and aggregator platforms have reshaped the nature of work, creating new, flexible job opportunities. However, with this transformation, they also inherit the responsibility to ensure a harassment-free environment for all platform users. While the POSH Act was initially conceived for traditional workplaces, its scope logically extends to digital workspaces where employer-like entities—such as aggregators—exercise control and oversight.

Leave a Reply

Your email address will not be published. Required fields are marked *

This field is required.

This field is required.

Disclaimer

The following disclaimer governs the use of this website (“Website”) and the services provided by the Law offices of Kr. Vivek Tanwar Advocate & Associates in accordance with the laws of India. By accessing or using this Website, you acknowledge and agree to the terms and conditions stated in this disclaimer.

The information provided on this Website is for general informational purposes only and should not be considered as legal advice or relied upon as such. The content of this Website is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and the Law Firm. Any reliance on the information provided on this Website is done at your own risk.

The Law Firm makes no representations or warranties of any kind, express or implied, regarding the accuracy, completeness, reliability, or suitability of the information contained on this Website.

The Law Firm disclaims all liability for any errors or omissions in the content of this Website or for any actions taken in reliance on the information provided herein. The information contained in this website, should not be construed as an act of solicitation of work or advertisement in any manner.