Can Remote Work Complaints Be Handled Under PoSH? Challenges in Investigating Virtual Harassment

The shift to remote and hybrid work in India – especially accelerated by the COVID-19 pandemic – has brought new questions about workplace safety under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”). Industry reports suggest that as many as 96% of Indian employers adopted work-from-home arrangements during the 2020 lockdown. In fields ranging from IT/ITeS, finance and consulting to education and healthcare, employees now perform duties online.

This raises concerns about virtual sexual harassment and online workplace harassment: do PoSH protections extend to misconduct that occurs digitally? The PoSH Act aims to guarantee every woman a safe work environment (no woman “shall be subjected to sexual harassment at any workplace”), but applying it to offsite, digital interactions poses legal and practical hurdles. This article examines the scope of the PoSH Act in remote contexts, the challenges of investigating such complaints, and relevant case law and guidance under Indian law.

PoSH Act and Remote Work: Scope and Definitions

The PoSH Act’s definitions expressly cover non-traditional workplaces. Section 2(o) defines “workplace” to include any location connected to employment, even a private residence: it covers “[a]ny place visited by the employee arising out of or during the course of employment” and explicitly includes “a dwelling place or a house”. Courts have interpreted these provisions liberally. 

For example, the Delhi High Court in Saurabh Kumar Mallick v. CAG (2008) refused to confine the term “workplace” to a physical office, noting that modern technology allows officials to run offices from home and that harassment at home must still count as a workplace incident. 

Similarly, in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University the Nagpur High Court emphasized that the PoSH definition of “workplace” is “inclusive and deliberately kept wide” so that any area where a woman may be harassed is not left out. 

The Calcutta High Court in Ayesha Khatun v. State of West Bengal (2012) likewise held that “workplace” should have a “broader and wider meaning” beyond the office compound. In short, an employee’s home or any remote work location is treated as an extension of the workplace for PoSH purposes.

The Act’s definition of “employee” is also broad, covering anyone employed for work on any basis (regular, contract, volunteer, etc.). This means remote workers – whether full-time, part-time or contractual – are covered if they work under an employer. In practice, companies should assume PoSH applies to all eligible women workers whether they are in the office or on a video call from home. Indeed, PoSH’s objective (safeguarding women’s right to a safe work environment) extends naturally to online workplace harassment India situations.

Importantly, the PoSH Act defines sexual harassment in inclusive terms (Section 2(n)) – including unwelcome physical contact, demands for favours, lewd remarks, showing pornography, or any other unwelcome verbal or non-verbal conduct of a sexual nature. By implication, unwanted explicit messages or remarks transmitted via email, chat or video conference fall under “verbal or non-verbal conduct of sexual nature.” Thus, even though the Act was drafted before the rise of digital collaboration tools, its terms can encompass virtual misconduct. 

As one legal analysis notes, the Act’s expansive scope “ensures that acts made through email, social networking or video conferencing come under the PoSH Act. For example, sending obscene messages, using foul language, or accessing someone’s private life by any such means is deemed harassment”. In short, there is no separate “virtual PoSH” law – virtual harassment is treated as sexual harassment “at the workplace,” with the meaning of “workplace” extended by the courts and law to include remote settings.

Virtual Sexual Harassment: Conduct and Examples

Sexual harassment need not occur in a conference room to be unlawful under PoSH. Virtual sexual harassment (often called online workplace harassment) refers to unwelcome sexual conduct carried out via digital means when interacting for work. This can include emails, corporate chat apps (e.g. Slack, Teams, WhatsApp for work), video calls, social media used for professional networking, and other online platforms. Examples of virtual harassment include:

• Unsolicited lewd or explicit messages or emails sent to a colleague’s work account, or unwanted sharing of pornography via work channels.
• Making sexist comments or jokes in video conferences, or displaying sexual content (e.g. explicit wallpapers, posters) visible on camera during meetings.
• Persistent inappropriate advances or requests through chat or email, including “quid pro quo” demands in exchange for job benefits, even if conveyed remotely.
• Sending inappropriate GIFs, memes or images in workplace group chats that have sexual content.
• Online stalking or taking screenshots without consent during video calls, creating a hostile digital environment.
• Harassing phone/video calls at odd hours, or repeated unwanted virtual contact outside work hours via company channels.
• Any other persistent sexualized conduct through online channels that creates a hostile workspace.

For instance, a legal commentary notes that NGOs saw complaints of colleagues requesting video calls at odd hours, sharing inappropriate pictures, or making threats via personal phones. These acts, although “virtual,” replicate the harm of in-person harassment and are just as damaging to an employee’s dignity. Under PoSH, the key question is whether the conduct is unwelcome and related to one’s work environment; if so, the medium (physical or virtual) is irrelevant. As one law firm commentary puts it, “sexual harassment in the digital space… occurs online when working or by remote workers,” such as indecent images, sexist Zoom remarks, or private messages of a sexual nature. Ultimately, a remote incident that would amount to harassment in the office is actionable if it happens in service of or during employment.

To report online harassment, a woman employee should follow her organization’s PoSH complaint process just as she would for offline abuse. This means lodging a written complaint to the Internal Complaints Committee (ICC) or the employer’s HR (whichever is prescribed). She should preserve digital evidence (screenshots, chat logs, email headers, call records) as support. The ICC must then investigate; rules do not require a physical office to hear a case. In fact, courts have already adapted. 

Notably, during COVID, some PoSH cases were heard via video conference and judgments pronounced virtually. This trend indicates that formal inquiries (whether judicial or internal) can proceed online when needed, although the Act does not expressly outline virtual procedures.

Major and Minor Sectors: Remote Work in India

Remote and hybrid models are now common across many industries. Leading the way are IT and IT-enabled services (ITeS) companies, where software development, support, and back-office work easily migrate online. Sectors like finance and banking (BFSI) similarly shifted non-customer-facing roles to home during the pandemic. Consulting, marketing, and professional services also saw large work-from-home populations. Even education (online teaching, tutoring), media and publishing (remote reporting, editing), and healthcare (telemedicine consultations, remote administration) have substantial remote components. Smaller or emerging segments – such as start-up incubators, design houses, and NGOs – also use work-from-home for staff and contractors.

No matter the industry, if an employee’s work is at least partly virtual, the PoSH Act potentially applies. The law imposes obligations on employers in all these sectors to ensure a harassment-free digital workplace. For example, even educational institutions with online classes must form ICCs to cover teachers working remotely (as “workplace” extends to wherever teaching duties are performed). 

In fact, the Act does not distinguish between sectors – any “establishment” (private or public) with 10 or more employees must comply, and all women (including volunteers and trainees) are protected. Thus, organizations in IT, finance, education, healthcare, journalism and beyond must treat complaints of online harassment seriously.

However, industry practices vary. Tech firms often have formal remote-work policies and digital security, but smaller businesses may not. In some informal work, PoSH applies via local committees or has gaps. Regardless, best practice is uniform: employers should explicitly cover PoSH Act compliance for remote employees in their policies, training, and complaint procedures. 

This means updating the POSH policy to define prohibited conduct in online settings, training staff on digital etiquette, and reminding everyone that harassment is not tolerated just because it happens over chat or email.

Relevant Case Law and Legal Guidance

Indian courts have begun to fill in the blanks where PoSH is silent on virtual settings. The landmark case in this area is Sanjeev Mishra v. Bank of Baroda (Rajasthan High Court, Jan 2021). There, a senior bank manager sent lewd messages to a subordinate who had been transferred to another state. The accused argued that because he was in a different location and texted outside official hours, the bank had no jurisdiction. The court emphatically rejected this: it held that employees of the same organization share a “common workplace” on a digital platform, even if in different branches or after-hours. In other words, the entire online workspace of a company is one workplace. The judge also ruled that sending obscene messages to a subordinate, even after hours, still fell within “misconduct” under the service rules – essentially treating it as workplace harassment. Sanjeev Mishra set an important precedent: PoSH’s protections travel with the work context into digital communications.

Earlier, courts had similarly broadened “workplace.” In Saurabh Kumar Mallick v. CAG (Delhi HC, 2008), the court noted the realities of IT-era offices, stating that a narrow view of “office” cannot prevail when people conduct business through laptops and video-conferences. It held that a person cannot escape liability by claiming harassment happened at his home instead of the office. Likewise, Jaya Kodate v. RTM Nagpur University (Nagpur HC, 2018) explicitly observed that Parliament kept the PoSH “workplace” definition wide so no area of potential harassment is left unprotected. And the Calcutta HC in Ayesha Khatun v. State of West Bengal (2012) said the term must be given a broader meaning to implement the Vishakha safeguards everywhere. These cases did not involve modern video-calls, but their reasoning about scope directly applies to remote work.

On statutory guidance, the PoSH Act and Rules do not explicitly mention “virtual harassment,” and the Ministry of Women & Child Development has not issued a separate advisory for online conduct. However, the Act’s intent is clear: to provide dignified and safe working conditions, which by necessity includes digital interactions. Regulatory compliance now means employers must interpret PoSH purposefully. Some commentators urge companies to preemptively update their PoSH policies to cover online conduct. For example, an HR advisory notes that Sections 2 and 3 of the Act already encompass online misconduct (e.g. comments on video calls or lewd messages), but organizations should explicitly state it in policies. Similarly, the Act’s mandatory 90-day inquiry rule and confidentiality provisions apply regardless of medium. Practical advice includes training ICC members on virtual etiquette and evidence handling, even if the law itself is silent on procedure.

Importantly, courts have emphasized women’s fundamental rights in this context. The Supreme Court (in Punjab & Sind Bank v. Durgesh Kuwar, 2015) reaffirmed that workplace harassment violates equality, dignity and livelihood rights. Lower courts recently commented that with the pandemic and work-from-home “here to stay,” online meetings have surged, “leading to a rise in virtual/online workplace harassment” and making it crucial to give women wider protection. In sum, the judicial trend is to adapt PoSH to modern work: if a woman is targeted in her capacity as an employee, the Act should apply irrespective of location or medium.

Investigating Virtual Harassment: Challenges and ICC Procedures

While the legal scope covers remote harassment, Internal Committees (ICCs) face practical difficulties investigating virtual complaints. Some key challenges include:

• Evidence Collection: Virtual incidents leave digital footprints, not CCTV tapes. ICCs must rely on emails, chat logs, video call recordings or screenshots. Ensuring authenticity and chain-of-custody for such evidence can be hard. Offenders might delete messages or use ephemeral apps. Victims must be coached to promptly secure evidence (saving screenshots or forwarding harassing emails) to strengthen their case.
• Defining the Workplace: Although courts treat the digital workspace broadly, ICCs must still determine if the incident is connected to employment. If harassment occurs on a personal social media account or outside work projects, committees must assess the nexus to work. The Bank of Baroda case illustrates this: the court treated after-hours texts to a subordinate as within the employer’s purview. ICCs should apply a similar common-sense test: if the misconduct was by a colleague (or superior) in relation to work duties, it likely counts.
• Witnesses and Verification: In an office setting, a colleague might witness harassment, but remote incidents often lack third-party observers. ICCs may need to rely on circumstantial evidence. When conducting hearings (often by video call), verifying identities and signatures electronically can be tricky. Ensuring that both parties have a chance to present documents (screenshots, chat histories) and explain context is essential.
• Technological Barriers: Not all ICC members or parties may be comfortable with remote hearings. Committees may lack guidelines on holding online meetings, taking testimony, or ensuring confidentiality (e.g. preventing recording of the session by unauthorized persons). Video hearings can make it harder to read body language or build trust with the complainant. On the other hand, remote hearings can also protect victims by allowing them to join from a safe space. ICCs will need clear ground rules: for instance, using secure conference platforms and requiring participants to join from private locations.
• Jurisdictional and Procedural Issues: If a complaint involves colleagues in different states (or one working from home), questions may arise over which office’s ICC has jurisdiction. The Bank of Baroda decision implies that jurisdiction follows the organization, not geography. In practice, many companies simply allow the ICC of the employee’s base office to take the complaint, irrespective of where she sits. Also, the Act allows complaints within 3 months of the last incident. Determining when harassment “occurred” can be nuanced online; committees should consider the pattern of conduct up to the complaint date.
• Confidentiality and Retaliation: Ensuring privacy is harder remotely. A complainant may fear that her harasser or other colleagues will learn about the complaint through online chatter. Companies should reiterate their anti-retaliation policy and instruct ICC members to handle data carefully. For example, hard copies of evidence should be avoided unless necessary, and any email communication about the case should be on secure channels.

Despite these challenges, ICCs have adapted. During COVID-19, many committees conducted inquiries by video conference. As one report notes, courts themselves have held PoSH cases over VC. Continuing this flexibility, ICCs can set up virtual hearings with notice to both parties. The Rules do not forbid remote inquiry; indeed, the urgency of harassment cases argues for accommodating digital investigation methods.

Conclusion and Best Practices

In summary, the PoSH Act does cover remote work harassment. Its broad definitions and judicial interpretations mean that online sexual misconduct by colleagues or managers falls within its ambit. For employers and employees alike, it is crucial to treat virtual harassment as seriously as in-person abuse. Here are some best practices to ensure PoSH compliance for remote employees:

• Update Policies and Training: Explicitly state in the sexual harassment policy that offensive digital behavior (emails, messages, video calls) is covered. Conduct POSH training that includes virtual workplace scenarios, teaching staff how to recognize and report online harassment.
• Encourage Reporting: Remind employees they can use the same grievance channels (HR, ICC) for remote incidents. Encourage prompt reporting and evidence saving (screenshots, call logs).
• Equip ICCs: Make sure committees have the technology and know-how to hold remote hearings. Appoint or train members comfortable with virtual meetings. Establish rules (e.g. no recordings, secure platforms) to preserve fairness and confidentiality.
• Gather Digital Evidence: Work with IT/legal experts as needed to authenticate emails or chat data. If necessary, involve digital forensic experts. Maintain logs of all submissions.
• Ensure Accessibility: For hybrid workers in satellite offices or field locations, clarify which ICC they should approach. Remember that even if a woman works from home, she is entitled to a safe environment. ICCs should proactively reach out to remote staff (e.g. via email reminders of anti-harassment policies).

By recognizing that the “workplace” has expanded to include the digital space, organizations can better protect employees and reduce liability. Courts and regulators expect PoSH mechanisms to adapt to the new normal. As one legal commentator notes, the pandemic has “amplified” online meetings and “led to a rise in virtual/online workplace harassment,” making it crucial to extend protections. With clear policies, training, and responsive ICC processes, employers can ensure PoSH Act and remote work environments remain safe for all employees.

References

• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  
• Saurabh Kumar Mallick v. Comptroller & Auditor General of India, 151 (2008) DLT 261 (Delhi HC, 2008). 
• Ayesha Khatun v. State of West Bengal & Ors, 2012 SCC OnLine Cal 3116 (Calcutta HC, 2012). 
• Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University & Ors, 2014 SCC OnLine Bom 814 (Nagpur Bench, Bombay HC, 2014).
• Sanjeev Mishra v. Bank of Baroda & Ors., SBCWP No. 150/2021 (Rajasthan HC, Jan. 11, 2021).
• Punjab & Sind Bank v. Durgesh Kuwar, (2020) 19 SCC 446 (Supreme Court of India, 2020).
• Kapoor, Anubhav, “Can virtual harassment be considered workplace harassment under PoSH Act?” (People Matters, July 8, 2020).
• Nayak, Madhumita, “Virtual Harassment and the POSH Act” (India Corporate Law, May 2020).
• Ministry of Women & Child Development, “Handbook on Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,” Government of India (2015).
• Mandal, Sumedha, “POSH compliance for Remote Work: Why your organisation needs an update” (Economic Times HRWorld, Aug. 21, 2021).
• “Virtual workplace harassment: Are your remote workers safe?” (SHRM India, June 23, 2020).
• “Work-from-home pushes up online harassment complaints under POSH” (Business Standard, Aug. 3, 2021).
• Indian National Bar Association (INBA), “Sexual Harassment at Virtual Workplace: Compliance under POSH Act” (INBA Legal Newsletter, Sept. 2020).
• “How to investigate sexual harassment complaints remotely?” (ICICI Lombard HR Advisory, Dec. 2020).