ABSTRACT
“A Knock That No One Heard.” A woman gig worker who sought recourse for the harassment she faced from her co-worker, denied because she was not formally employed and was rather classified as an independent contractor. Because the aggregators called themselves digital intermediaries and refused to call themselves employers? This paper critically examines the limitations of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) in addressing the new realities faced in the form of the gig-economy and the non-traditional employment offered therein. Due to the flexibility offered by the gig sector, an increasing number of women are entering sectors such as ride-hailing, food delivery, domestic services, and beauty care, but without any legal protections offered to them. The paper, through statutory analysis, judicial review, empirical data, and international comparisons, highlights how the current legal framework fails to accommodate the unique risks and vulnerabilities faced by women gig workers. It analyses the definitions and offers an insight into how the definitions have created gaps and how they should be addressed. The paper concludes with comparative studies and suggestions like amending Section 2(f) of the PoSH Act, introduction of a new Schedule specific to the digital workspaces, and mandating establishments of ICC and LCCs. The paper also argues for clarification of the employer’s responsibility under the Code of Social Security and how it’s becoming an obstacle in the creation of an inclusive framework. By proposing legislative amendments, platform accountability, and stronger institutional redressal, this paper seeks to become the voice of the women who keep the digital economy running, yet remain uncounted in its laws.
KEYWORDS- Gig worker, PoSH Act, Independent Contractor, Internal Complaints Committee, Local Complaints Committee, Digital workspaces, Code of Social Security, 2020
INTRODUCTION
“Platform workers often operate in a legal grey zone—classified as independent contractors but functionally dependent on platforms, with minimal protection against unsafe conditions or loss of income.”- INTERNATIONAL LABOUR ORGANISATION (ILO)
Over the past decade, the global economy has undergone a significant transformation, driven by digitization, algorithmic management, and the introduction of new work models, particularly platform-based ones. The traditional model of full-time employment is a thing of the past; it has given way to more fluid, flexible, and often precarious forms of work, most notably, the gig economy. India, with its demographic dividend of a half-billion labour force and the world’s youngest population, and the widespread adoption of modernisation, is slowly capturing the position of a frontier in this revolution. India’s gig economy has emerged as a significant force in recent years, shaped by the intersection of digital innovation, economic shifts, and changing workforce preferences. The growth began in the early 2010s, driven by the rise of mobile-based platforms that offered flexible, on-demand work. Companies such as Ola, Uber, Swiggy, and Zomato introduced a new model of employment—one that emphasized autonomy and short-term engagement over long-term contracts. The COVID-19 pandemic accelerated this shift, displacing traditional employment and prompting many workers—especially those from informal sectors—to adopt gig work as a source of income.
The government think-tank NITI Aayog, in its report on India’s Booming Gig and Platform Economy reported that 77 lakh (7.7 million) workers were engaged in the gig economy in 2020-21, and the workforce is expected to “expand to 2.35 crore (23.5 million) workers by 2029-30, another report states that out of that workforce, 28% of the gig workforce consists of women. According to Mamta Murthi (The Vice President for Human Development at the World Bank), gig work can become a driving factor in support of increased labour market participation for women.
However, beneath the promise of flexibility and financial independence opportunity, the gig economy holds a range of structural challenges, the most pressing among them being the safety and security of its women workers. Like every coin has two sides, this sector is no different. While the increasing participation of women signals towards gender inclusion, it also exposes them to new forms of workplace risk. Unlike traditional employment, platform-based work typically lacks the institutional structure that offers oversight, formal grievance mechanisms, and enforceable workplace protections. The integration of women into this unregulated and dispersed form of labour raises urgent concerns about workplace safety notably the increasing reports of sexual harassment faced by women gig workers Women engaged in delivery services, ride-hailing, beauty services, and domestic gigs often operate in isolated or poorly regulated environments, facing safety concerns that range from verbal harassment to physical assault. The absence of clearly defined employer liability due to the not-so-statutorily feasible classification of gig workers as “independent contractors” compounds these risks by removing platforms’ legal responsibility for ensuring worker safety. As a result, women in the gig economy frequently navigate their workdays with little assurance of physical security, legal recourse, or access to gender-sensitive infrastructure such as safe travel routes, secure rest areas, and functioning grievance redressal systems.
The legal framework in India, specifically the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), was particularly designed to address the grievances of traditional employment structures. The Act presumes the existence of a formal employer-employee relationship and a physical workplace as the necessity for application of the said Act, both of which are largely absent in platform-based work. As a result, gig workers often fall outside the protective ambit of this legislation, rendering their experiences of harassment invisible and unaddressed.
RESEARCH METHODOLOGY
This paper is descriptive, and the research is based on secondary sources for a thorough analysis of the separation of powers and judicial activism in India. Secondary sources of information, like reports, journals, and websites, are used for the research.
REVIEW OF LITERATURE
With the increase in platform-based work, the need for defining the gig economy was recognized, which formally has been defined as a job market marked by short-term or freelance vocations, frequently facilitated by internet networks. Furthermore, the Parliament gave it a statutory recognition with the promulgation of The Code of Social Security,2020, for the first time, and defined a “Gig worker” as a person who performs work or participates in a work arrangement and earns from such activities outside of a traditional employer-employee relationship. Despite this legal acknowledgement, the regulatory framework for protecting such workers, particularly women, remains inadequate.
Ria Kasliwal (2020), in her policy brief for the Observer Research Foundation, highlighted how women are concentrated in feminised sectors such as beauty services, domestic cleaning, and caregiving, which often require workers to enter clients’ private homes alone, thereby increasing the risk of sexual harassment and assault. These roles are largely excluded from safety discourse in labour law.
Empirical data further underscores the precarious position of women in the gig economy. A 2022 Janpahal survey of over 5,000 gig workers revealed that nearly 28% of India’s gig workforce is female, most of whom operate without any form of social or legal protection. Although a significant portion of these women treat gig work as full-time employment, their classification as “independent contractors” means they remain outside the scope of formal labour protections, including the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), a law that was formulated to address the very cause, excludes women employed in the gig sector because of the improper classification of labour in the very sector.
Upon encountering a surge in instances of sexual harassment among gig workers, the Gig and Platform Service Workers Union GIPSWU organized a “digital strike” during Diwali in 2024, demanding institutional accountability, access to ICCs, and statutory recognition under the POSH Act for all women platform workers. These campaigns signal that Grassroots mobilization to emerge in response to this protection gap, highlighting not only the lack of legal remedies but also the growing political consciousness among women gig workers.
An analysis of a number of literature pieces reveals a set of persistent and structural deficiencies in the existing legal framework governing workplace safety for women gig workers in India. The deficiencies can be understood as, firstly, the classification of gig workers as “independent contractors” effectively excludes them from the protective ambit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Secondly, the POSH Act’s definition of a “workplace” remains confined to traditional employer-controlled environments, rendering it unsuitable for digitally managed workspaces, such as those found in the gig economy. Thirdly, the institutional mechanisms intended to support women in unorganised sectors, particularly Local Complaints Committees (LCCs), remain underutilised, poorly publicised, and often functionally inactive, thereby denying gig workers meaningful access to redressal. Finally, A research by the Centre for Labour Law at NLIU revealed that gig platforms routinely evade liability by characterising themselves as technology intermediaries rather than employers. This denial of employer status allows them to avoid the legal obligation to constitute ICCs or even inform workers of their rights under the POSH Act.
STATUTORY ANALYSIS
An Indian Uber driver, Sheetal Kashyepi, said that “Sometimes customers ogle me, and I get scared, but it happens almost daily. I cannot rebuke customers otherwise, they will give me a low rating, which will affect my ability to get more work. Or they will make a complaint about me to the company, and the company will penalise me later.”
The concern regarding the surging rise in cases of sexual harassment at the workplace was raised in the case of Vishaka v. Union of India wherein the Supreme Court laid down guidelines to regulate such instances at the workplace. In light of the disastrous incidents and the guidelines of the Supreme Court, the parliament enacted the Prevention of Sexual Harassment Act 2013.
Considering the subject of discussion, it becomes pertinent to look into the Act itself to understand the lacunae that the study suggests that the primary problem for application of PoSH Act to the platform workers arises due to the ambiguity in employment status creates several gaps to the implementation of the Act, as Gig workers are not considered employees under most labour laws. The definition of “employee” under section 2(f) of the act has recognized formal employment by an employer, which again underscores the gig sector because platforms like Zomato, Swiggy do not employ these workers formally; rather, they act as a digital intermediary. These platforms have termed gig workers as “Independent Contractors”, which specifically excludes them from the scope of an aggrieved woman. In the case of Tanvi Sinha v. Internal Complaints Committee & Ors., Ola contended that the PoSH Act did not apply to them in this context, arguing that their drivers are independent contractors, not employees, and thus fall outside the purview of the Act. The company also highlighted that its Internal Complaints Committee (ICC) had dismissed the complaint based on external legal advice, without a thorough examination under the PoSH Act.
A ‘workplace’ under this act has been defined as a traditional setup, excluding the gig sector, though it defines an ‘unorganised sector’ There lie several gaps in the definition that leave the gig workers out of the protective ambit of the Act. Gig workers operate in dynamic environments. A delivery person’s workplace might span streets, restaurants, and customers’ homes. This fluidity makes it hard to determine who is responsible for ensuring their safety.
Under the POSH Act, companies with over ten employees must establish an Internal Complaints Committee (ICC) to handle complaints. However, platforms often claim that gig workers are “partners” or “contractors,” not employees, and avoid accepting their complaints before the IC. This leaves gig workers without access to address grievances under the PoSH Act.
The main resistance encountered in the application of the POSH Act, as discussed above, is the exclusion of the gig workers and platform owners from definitions of employer-employee relationship under the Act. There has been activism in the form of Petitions like the example of Petition No WP (C) 1068/2021, which is pending in the Supreme Court, in which the petitioner has contended that Gig Workers should be declared as Employees to avail social security benefits to address the root. But the platforms show major unwillingness to address these issues because of the fact that the moment they open up to liability as Employers under the POSH Act, it would ultimately pave the way for the employee to start demanding social security.
THE GLOBAL SCENARIO
The UK
In order to understand how legal systems can respond to these gaps, it is recommended to examine how courts in other countries have addressed similar issues in the gig economy. A landmark judgement in this regard is the UK Supreme Court’s ruling in Uber BV v. Aslam here. Yaseen Aslam and James Farrar challenged Uber’s claim that its drivers were independent contractors, arguing they were “workers” entitled to minimum wage and paid leave. Uber denied any employment relationship, calling drivers “partners” under its contracts. the Honourable Court emphasised that Uber exercises significant control over its drivers, which signals dependency. Therefore, the court dismissed Uber’s independent contractor theory and held that the drivers were not truly autonomous and therefore deserved to be treated as employees under any other traditional set-up. This case highlights how employers try to waive their liability and cancel on the safety of these employees but the honourable court has made a landmark decision and this would further help the workers to afford safety in the employment thereby protecting them and safeguarding their rights. Furthermore, the UK has promulgated the Worker Protection (Amendment of Equality Act 2010) Act of 2023, which casts an obligation on the employers to take reasonable measures to protect their employees while they are on the job. The Equality Act has further given a broad definition to “worker,” stating that it includes people outside of the conventional employer-employee relationship and also suggests extending this obligation to prevent third-party harassment.
AUSTRALIA
Sexual harassment at workplace in Australia is dealt with under its Fair Work Act, 2009 and the Sex Discrimination Act, 1984. Fair Work Act condemns sexual harassment at the workplace and has widened its ambit to look beyond the formal relationships and has given recognition to the gig sector. It holds employers liable unless they can prove otherwise. The Sex Discrimination Act mandates that businesses and organisations take proactive measures to eradicate such activities.
ONTARIO
Ontario has widened the definition of workplace harassment under the Canadian Labour Code to include virtual interactions, another noteworthy change brought by Ontario is the enactment of the Digital Platform Workers’ Rights Act (DPWRA) recognized the growing need to regulate the gig economy, and to expand it to include anti-harassment measures. The government has also suggested increasing the funds to counter such instances.
LEARNINGS FOR INDIA
India can draw inspiration from these regulations by widening the scope of the definition of employee in the labour codes and giving recognition to the contemporary changes that India is encountering in its employment set-up. Like Ontario, it can pass a bill specifically recognizing this form of employment and hold the platforms accountable, similar to the liability cast upon traditional employers by bringing the independent contractors under the umbrella of employees. Such digital platforms should not be absolved from their accountability just because of a difference in terminology.
SUGGESTIONS AND RECOMMENDATIONS
To address the statutory, practical, and judicial gaps in the current legal framework, it is recommended that the the Act should be amended to include women workers engaged in digital platform-based work, covering them explicitly within the ambit of an employee in the said section. The definition must be expanded to cover all women workers in both formal and informal work arrangements, including those engaged via digital intermediaries. Secondly, all digital platforms employing more than a prescribed threshold of gig or platform workers, be it on a contractual, ad hoc, or partner basis, therefore, they should be statutorily mandated to constitute an Internal Complaints Committee under Section 4 of the PoSH Act. The threshold should be inclusive of non-traditional employment relationships and be calculated based on the number of active platform users/workers engaged per month. Thirdly, a clarificatory notification under the Code on Social Security, 2020 should be issued by the Central Government, explicitly recognising platform companies as “aggregators” with employer-like responsibilities for the purpose of workplace safety and grievance redressal under the Act to prevent them from evading liability and to help bridge the current ambiguity surrounding liability and accountability for safety violations in the gig economy. To ensure more targeted protections a new Schedule should be introduced to the PoSH Act to recognize specific protections and procedures specific to gig and platform workers. This Schedule could suggest establishment of grievance redressal mechanisms for these platforms with a more inclusive definition of digital workplaces, while leaving scope for future amendments and evolution. Concurrently, the Ministry of Women and Child Development should initiate a monitoring mechanism to ensure that Local Complaints Committees (LCCs) under section 6 are constituted, adequately funded, and technologically equipped to address complaints from gig and informal workers. Lastly, the Central Government, in consultation with platform companies, should issue guidelines mandating gender-sensitive safety features such as SOS buttons, route tracking, verified service locations, and safe public rest spaces for gig workers to ensure that such cases don’t go unreported, and with the help of the data on these platforms, a check can be made to ensure timely redressal.
CONCLUSION
As India stands on the verge of leading the world in the digital transformation, and with its large population of working youth, the intersection of this digitisation and labour demands attention, particularly for women navigating the unregulated corridors of the gig economy. The Gig sector in India, on its developing journey, clearly is excluded from the definitions that could grant these women the protection they need from workplace harassment, which is right now out of their reach because of the said exclusion. This paper has analysed the PoSH Act, 2013, which was enacted to provide a robust legal framework against sexual harassment at the workplace, and how its design remains rooted in the traditional employment, excluding an entire segment of the female workforce comprising nearly a third of the gig ecosystem. This exclusion has not only undermined the constitutional guarantee of equality but has also left women workers in these digitally employed structures vulnerable to harassment without institutional recourse.
The paper has provided a comparative analysis with other countries like the UK, Ontario, and Australia, and how India can draw inspiration from them and provide a more inclusive framework for its women workforce. India is a country that holds the Constitution as the Supreme law, and by excluding the gig sector from protection, violates Articles 14, 15, 15 and 21, which can later lead to turnover of women from these sectors because of the denial of their basic rights.
The gig sector, which was seen as a promise of empowerment, will fall short if it’s laid on such precarious foundation. Without meaningful institutional protection, the offered flexibility becomes exploitation, and autonomy turns into abandonment without any meaning. Ensuring workplace safety for women gig workers is not only a question of compliance; it is a test of our commitment to an inclusive, equitable, and modern labour regime. The law must not lag behind the times it seeks to govern.
NAME: DISHIMA JAIN
COLLEGE: VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES (VSLLS-VIPS)