Notional Extension of Workplace vis-à-vis POSH Act, 2013

Posted On - 10 June, 2019 • By - Smita Paliwal

The concept of Notional Extension
has been applied by Indian Courts in various cases falling under Workmen
Compensation, in order to ensure the applicability of beneficial labour
legislation to situations wherein the course of employment cannot be limited to
the time or place of the specific work which the workman is employed to do. In
line with the same concept we can see how the said doctrine has been applied
time and again to broaden the concept of “workplace” as “extended workplace” under
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act 2013 (hereinafter referred to as the “Act/POSH Act”).

as Defined under the Act:

Under the Act, “workplace” has
been defined as which means establishments, enterprises, institutions, offices,
branches, premises, locations or units established, owned, controlled by the
Company or places visited by the employees out of or during the course of
employment including accommodation, transportation provided by the employer for
undertaking such journey.

The definition provided by the
statute, itself is broad and does not restrict the place of work of the
perpetrator to the physical environment of the workplace, it takes into
account, all possible access places/points/scenarios wherein the aggrieved
woman can come into his contact.

The Various Notional Extension of Workplace:

Team Outings

Outings are usually organised by the Employer/employees in order to build
better understanding of the working teams for better co-ordination and
co-operation among team members. Going by the principles of extension of the workplace,
such outing destinations gets covered under the purview of “workplace” as the
said outing is organised and controlled by the Employers and the outing has
been attended during the course of employment. Reference could be drawn to
International Labour Organisation (“ILO”) observations on the subject, which
emphasized that the definition of workplace should not be “restricted to the
physical environment of the workplace”; it must take into account the ‘access’
that a perpetrator has to the harassed by virtue of a job situation or work
relation”. The reason is obvious, “Sexual harassment is not restricted to
workplaces in the sense of one physical space in which paid work takes place
for eight hours per day”.[1] ILO has specifically
considered the different scenarios or events wherein a woman can be exposed to
an unpleasant situation outside the premises of the employer, at conferences,
on business trips, at company-sponsored social events or via telephone or
electronic mail and had proposed broadening the definition of workplace by the
concerned countries in the region.

Cyber Space

Nowadays, business activities are conducted through video or audio
teleconferences in order to ensure timely deliverables and connectivity across
cross-country offices. If during such conference, any incident of harassment
takes place, one cannot take the plea that such calls and conferences shall not
fall under the purview of the Act. In the case of Saurabh Kumar Mallick vs. CAG[2], the court has
specifically referred to such a scenario and clarified that with the advent of
technology, a broader interpretation has to be adopted in order to cover such

Cab Services

Renting cabs for daily commute is a common occurrence, in recent
past there have been instances where passengers were harassed by the driver. Such
an incident happening in cab, levies direct liability on the providers of cab
services. As insides of the cab is an extension of the workplace of the driver
of which the employer is in control and shall ensure safety of the women passengers
commuting the ride. In Saurabh
Kumar Mallick vs. CAG
the Division Bench of the Delhi High Court has opined that in view of the
objective behind the decision of the Supreme Court in Vishaka & Ors. vs State of Rajasthan & Ors.[4]“a narrow and pedantic approach cannot
be taken in defining the term ‘workplace’ by confining the meaning to the
commonly understood expression ‘office’ that is a place where any person of the
public could have access.” Referring to the “the recent trend which has emerged
with the advent of computer and internet technology and advancement of
information technology”.

Food Delivery Services

Most delivery services function through delivery partners who in
turn on receipt of the order through the food delivery application, co-ordinate
with the restaurants and deliver food to the customers. Recently, there have
been instances wherein the customers have complaint of harassment from these
delivery partners. This falls within the purview of the POSH Act, as by any
extension of place of work where the employer has control or management on the
employee should qualify as workplace by giving a wider connotation of the
expression. The activities of the food delivery partners can be managed and
controlled by the employer as long as they are delivering the said order to the
place of delivery, their movements can be tracked by the Employer and can
always be contacted through their delivery support. In the case of Ayesha Khatun vs State of West Bengal[5], the Single Bench of the
Calcutta High Court observed and was of the opinion that a logical meaning
should be given to the expression “workplace” so that the purpose of framing
the guidelines in the Vishaka case[6] is not defeated.

Notional Extension – The Ground Reality:

Inspite of the fact that the law and
interpretation of the definition of “workplace” is very clear on the subject
and covers all possible places which by the notion of extension of employers’
control or management: –

  1. No
    awareness among employees regarding the provisions and the extent of
    applicability of the POSH Act: – Employers shall take on the responsibility of
    conducting workshops and training sessions regarding the applicability and the
    extent of applicability of provisions under the POSH Act, in order to ensure compliance
    and avoid any penalties and prosecution under the Act. Under the POSH Act, the
    Employer is mandated to organise such workshops and training sessions at
    regular intervals for sensitising the employees under the POSH Act. In order to
    inculcate interest in such workshops, employers can provide some incentives for
    the attendance.
  • Provisions/Policies
    are incomprehensive: Conducting of training sessions in vernacular language in
    order to ensure that the employees/personnel can apprehend it accurately.
  • Specific
    mention of sexual harassment policy in agreements with
    employee/personnel/consultants: – In order to ensure that employees or
    personnel are aware of the provisions of the POSH Act and the applicable
    policies of the organisation, there should be a specific mention of the same in
    their agreement with the company/organisation.
  • Zero
    Tolerance Approach towards such incidents: – While the POSH Act and the rules
    thereunder are very clear on the penalties imposed on the accused, however
    there have been instances wherein such complaints are not acted on and are not
    dealt as per the provisions under the Act.
  • No clarity on applicability of POSH committee to drivers’/delivery partners’: – Though the law is clear on its applicability of the provisions of the POSH guidelines, the cab operators and e-commerce players have not been able to understand the concept of notional extension or extended workplace and have assumed that the Internal Complaints Committees do not cover their drivers, delivery operators thereby relieving the companies of responsibility for their behavior.


While the Vishaka Guidelines were confined to the traditional office set-up and recognizing the fact that sexual harassment may not necessarily be limited to the primary place of employment, the POSH Act has introduced the concept of ‘notional extension’ or an ‘extended workplace’. The said concept is definitely a positive step to ensure safety of women in the era of e-commerce and technology, however the buck stops at the lackadaisical approach of the employers/organisations towards the sensitivity of such incidents happening during the course of business and look at it in a broader perspective. 

Contributed By – Smita Paliwal
Designation – Senior Associate

“Action Against Sexual Harassment at Work in Asia and the Pacific” (ILO 2001)
22, 126

(2008) 151 DLT 651

(2008) 151 DLT 651

(1997) 6 SCC 241

2012 SCC OnLine Cal 1860

(1997) 6 SCC 241

(2008) 151 DLT 651

(1997) 6 SCC 241

2012 SCC OnLine Cal 1860

“Action Against Sexual Harassment at Work in Asia and the Pacific” (ILO 2001)
22, 126

[5] (2008) 151 DLT 651

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