'Bots Can't Solve...': Decoding the Ola Case and the Debate Over POSH Act in Gig Economy

(The Quint prioritises in-depth coverage of the gig economy. Support us to keep app-based platforms accountable.)Trigger Warning: Mentions of sexual harassment.Almost six years ago, a woman passenger in Bengaluru lodged a complaint against an Ola driver for sexually harassing her. The company took action against the accused driver by 'blacklisting' him and sending him for 'counselling and training'. The aggrieved survivor then moved a writ petition before the Karnataka High Court, claiming that her complaint to Ola's parent company ANI Technologies had gone unaddressed. Usually, any sexual harassment complaint in the workplace falls under the Prevention of Sexual Harassment at the Workplace (POSH) Act, 2013, but as Ola argued that their drivers were 'independent contractors' – and 'not employees', a Division Bench of the High Court, in October, stayed a single-bench judgment that deemed Ola drivers as employees, thus making the company liable.Even as the case is in the court, it has opened the floodgates on compliance and liability of online aggregators, as well as raised questions like – in the absence of any legislation against sexual harassment, how can customers as well as gig workers be protected?In the single-judge judgment in September, Justice MGS Kamal had directed ANI Technologies' Internal Complaints Committee (ICC) to investigate the survivor's complaint in accordance with the POSH Act's provisions. Ola, however, declined to address the incident, citing the driver’s 'independent contractor' status.Why is the distinction between an 'employee' and an 'independent contractor' so crucial?Under Chapter 1 of the POSH Act, an “aggrieved woman” implies "a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent..." Further, sub-section (f) of Section 2 of the Act describes the respondent to include "regular, temporary and ad hoc workers, whether hired directly or indirectly, whether they are paid workers or volunteers, and includes probationers, apprentices, etc."Speaking with The Quint, Lakshita Handa, a senior resident fellow at Vidhi Centre for Legal Policy, explains that online aggregators refuse to implement the POSH Act because "the definition (of the respondent) is quite wide – and does not mention 'gig workers' specifically.""This is perhaps because the Act was enacted in 2013, and gig work wasn't as prominent a means of employment as it is now," she adds. "A lot of companies hide behind jargons like 'contractor' and 'aggregator' to avoid legal liability. If we try to interpret POSH pedantically, that is if we say that you cannot apply it because it doesn't exactly use the term, then we are defeating the purpose and intent of having a law of this nature."Agreeing with Handa, Chiara Furtado of the Centre for Internet Society (CIS) said, "The actual circumstances of platform employment, like the vast labour control that platforms wield, and the high economic dependence of workers on income from platform work, fulfil tests of employment."Even the single-judge bench, on analysis of Ola’s ‘Subscription Agreement’ with the drivers, had held that the relationship between Ola and its drivers 'comes well within' the purview and definition of 'employees-employer' under the POSH Act. To this, Ola had argued that it operated as an 'intermediary' (under the Information Technology Act, 2000) – and did not have control over their 'driver subscribers', except for providing technology to bring together riders and customers.Speaking about the "hypocrisy" of aggregators, Rakshita Swamy, founder of Social Accountability Form for Action and Research (SAFAR) in Bengaluru, says companies cannot "selectively choose which part of employer-employee relationships they will follow.""While on one hand, platforms say that they cannot bring in regulations, on the other they are imposing regulations like mandating uniforms, ensuring that a partner clicks a picture before, during, and after the delivery. You (companies) are the ones who provide kits to your salon workers. You give them SOPs to follow. You impose penalties on workers, all of which are forms of regulation. Then you say you cannot regulate because they are 'independent partners'," she says.The lack of implementation of strict sexual harassment policies not only impact customers – like the Ola case survivor – but also the gig workers. At least 10 women app-based drivers and beauticians The Quint spoke to shared experiences of being sexually harassed and feeling unsafe at their workplace. Read more here. "Companies are trying a blind eye to sexual assault," experts say, adding that exclusion of gig workers from such protections leave many in vulnerable positions, especially since safety and security are critical factors influencing their decisions to enter or leave the workforce.Even as aggregators like Zomato, Swiggy, Uber, and Urban Company talk about a 'strict anti-harassment policy' in their Terms & Services agreements – and claim to have a robust grievance redressal mechanism to address complaints, experts say the ground reality is starkly different.Chandan Kumar, president of the women-led Gig and Platform Services Workers Union, says,"They say that their grievance redressal committee is functional, but in reality, it's not. You will come across hundreds of workers who've tried complaining and using the SOS helpline but to no avail.""A bot cannot be passed off as a meaningful grievance redressal mechanism," says Swamy. "Most often, there is no point of contact for gig workers. They just have helpline numbers and emails, and they'll have to wait for a callback."Zomato, in response to The Quint's queries, said that upon receiving a complaint, the aggregator "conduct(s) a detailed investigation within 24 hours and ensure(s) that necessary actions are taken promptly," Urban Company and Uber did not respond, while Ola declined to comment.A year ago, a 19-year-old girl was allegedly assaulted by a Blinkit delivery worker in Greater Noida. In May 2023, a bike-taxi driver was arrested in Bengaluru for allegedly harassing a woman passenger. Such incidents involving gig and platform workers have also sparked conversations on whether there is a need for stricter background checks of gig and platforms workers when aggregators onboard them.At present, most aggregator platforms like Zomato, Swiggy, Ola, Uber, and Urban Company only ask for basic details such as PAN Card, Aadhaar Card, Driving Licence, address proof, and active bank account. When this reporter reached out to platforms to understand their background verification process, only Zomato and Blinkit responded. "For onboarding on the platform, every potential delivery partner undergoes a thorough background verification check. Subsequently, we share the details with our background verification agency for cross-referencing the partner information with government databases, which contains records of all the FIRs, court cases, and verdicts. Any partner found to have a criminal record is immediately barred from joining the platform and we issue a full refund of their onboarding fee."Zomato to The QuintUber's Terms & Conditions (T&C) notes, "We will permanently deactivate a driver's account if a background check uncovers a violation of Uber's safety standards or of other criteria required by local regulators."Meanwhile, according to Urban Company's T&C, the company through third parties may "undertake such background verification from time to time thereafter.""If you are registered on the platform prior to the completion of the background verification, your registration on the platform shall be contingent on your background verification report meeting UC's standards," it adds.Uber and Urban Company were unavailable for comments. Ola declined to comment.Both Handa and Swamy concede that there is a need for better background checks."As a public facing service, it's important to have background checks, especially because workers are coming to your house and locality to deliver food. There must be criminal verification and a higher threshold of checks," says Handa.Swamy adds, "Do background checks, yes. But if you are, then you are taking responsibility as an employer. You must do background checks but own up to other responsibilities as well."Under the POSH Act, a Local Complaints Committee (LCC) at the district level is available to women working in the informal sector, of which women gig workers are a part. However, not only the women gig workers are unaware of the LCC, but experts say that alternatives like LCCs or filing a police complaint "lack the same effectiveness as access to an ICC.""LCCs are not even functional. There is no information or awareness on it. During my research in Kolkata, I found that an LCC was inside a police headquarters. Which woman will cross all boundaries to find out about an LCC and file a complaint?" asks Geetisha Dasgupta, a senior lecturer at the School of Development, Azim Premji University, Bengaluru.So, what can be done?Speaking to The Quint, Furtado says, "There is a need for policymakers to acknowledge the systemic issues with platform models that perpetuate high risks of gender-based violence and harassment, along with a whole host of violations of workers’ rights that continue unabated on platforms.""Currently, policy conversations are mostly limited to social security, whether at the national or state levels. There is a need for rights-based policy that looks beyond social security. Too often, regulation and protections for gig workers tend to take on a narrow lens of looking at only some sectors (which predominantly employ men) and, therefore, tend to invisibilise gendered experiences of platform work."Chiara FurtadoHanda believes that the way forward was to "have one big legislation on gig work.""This is an elephant in the room, and we cannot ignore that gig work has become a prevalent form of employment in our country. There's a need for a regulatory framework for aggregators too," she adds. Meanwhile, Dasgupta opines that there is a need for "sensitisation about workplace sexual harassment.""Just like the sessions conducted at white-collar jobs, aggregators too should follow this. Such sessions for both male and female employees promote a shared understanding of what constitutes as sexual harassment so that men do not behave in any way that can be interpreted as sexual harassment," she says.

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'Bots Can't Solve...': Ola Case and the Debate Over POSH Act in Gig Economy

"A lot of companies hide behind jargons like 'contractor' and 'aggregator' to avoid legal liability," say experts.

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Topics: Sexual Harassment Sexual harassment against women Job crisis