Internal Complaint Committee: Analysing the Legislative Vice on the Touchstone of Co-Working Spaces

Photo Credits: One Future Collective

By Hetal Doshi
The author is a law student at the National University of Study and Research in Law (NUSRL), Ranchi. She can be reached at hetaldoshi.hvd@gmail.com.

With more than 12,000 spaces around the globe (and more on the way), the $1B co-working industry is here to stay. As per Global Co-working Unconference Conference (“GCUC”), there were a total of around 1.7 million co-working members in 2017 and 2.3 million in 2018, a number which is expected to reach 5 million by 2022 [1]. In a world where ‘Co-working Space’ has become a global trend, the legal implications of this phenomenon on India’s laws such as the Prevention of Sexual Harassment at the Workplace require immediate attention.​

What is a Co-Working Space?
The term ‘Co-working’ literally means working together. It refers to both the physical space where employees of different companies ‘co-work’, and their working style. Simply put, a co-working space is one where different companies take up space under the same roof depending on their needs [2]. Suppose in a space of 400 sq. ft., employees of three different companies A, B, and C each own individual workspaces while sharing facilities like the gym, TV-Room, café, etc. This constitutes a co-working Space.
India’s standing with the Global Trend  
With a GDP growth rate of around 7%, India is an  economy driven by the service sector [3]. India’s demand for office space is among the highest in the world. The amount of space dedicated to offices in India’s top seven cities is nearly 22 million sq. ft, and is expected to climb to a record  high of 42 million sq. ft by the end of 2019 [4]. Furthermore, the country is also experiencing growth in the number of start-ups and in its freelancer population. As per the report published by The National Association of Software and Service Companies (“NASSCOM”), India had around 4,200 start-ups in 2015, a number that will increase to  11,500 by 2020 [5]. These statistics point towards a huge scope for growth within the co-working industry. For example, WeWork - one of the biggest names in this industry - has established itself in more than 21 locations despite its recent creation two years ago. [6]. 
Decoding the POSH Act
The most important legal implication of the global trend is regarding the position of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). This act provides a safe, secure, and empowering environment free from sexual harassment to every woman in the workplace [7]. We should note, however, that as per Sec. 3(1) of the Act, the incident of sexual harassment should have taken place at the ‘workplace’ for a woman to claim protection under the POSH Act. Before delving into its main issue, we must understand certain key terms.
As per Sec. 2(a) of the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment [8]. Given that the definition does not necessitate the woman to be an employee, even a customer/client who may be sexually harassed at a workplace can claim protection under the POSH Act. In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the test prescribed to determine whether a particular place is a workplace or not includes the following [9]:
(a) Proximity to the workplace;
(b) Management control over a place/residence where the woman is working; and
(c) Such a ‘residence’ has to be an extension or contiguous part of the workplace.
Is a Co-ICC for Co-Working Space the Future?
Sec. 4 of the POSH Act requires an employer to set up an Internal Complaint Committee (“ICC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment [10]. The legal conundrum which exists before us is whether a co-working space constitutes a workplace. Furthermore, if it does according to the test laid down in the above mentioned case, who is supposed to constitute the ICC in a co-working space? Should all the different companies whose employees occupy such a co-working Space constitute a separate ICC or should a common ICC be constituted by all the companies whose employees are working in that co-working Space? 
To illustrate the problem before us let’s continue with the aforementioned example: Suppose in a co-working Space, there are 5 employees of company A, 6 employees of company B, and 8 employees of company C. If we decide  that this co-working space is a workplace for the employees of all three companies, then if an employee of company C sexually harasses a female employee of company B, where will the inquiry be held? We should note that in the above example, each company has fewer than 10 employees working in the shared space, which is the minimum number necessary for a company to constitute an ICC. However, since more than 10 employees are working in the same place in our case (albeit for different companies), there are two possible answers to the question above:
First, the inquiry can be held in the company’s headquarters, which  may not be termed as the female employee’s workplace under Sec. 3 of the Act [11]; or
Second, a common/joint ICC or a Co-ICC can be constituted by all three companies A, B and C for their employees working in that particular co-working Space. As the POSH Act primarily aims  to provide every woman (irrespective of her age or employment status) with a safe, secure, and dignified working environment, free from all forms of harassment, the idea of a Co-ICC proves to be the only possible solution to our problem. As otherwise, such cases of sexual harassment will go unreported and thus, defeating the purpose of the POSH Act.
In the case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, the Bombay High Court upheld the constitutionality of a Common ICC constituted by the University for the employees of the senior college and the junior college [12]. The rationale applied by the Court was that as employees of junior and senior colleges share the same facilities and premises, in a hypothetical case a senior college lady employee may file a harassment complaint against  a junior college employee and vice-versa. Thus, the constitution of one committee, that is, a common ICC for such an establishment is in accordance with the provisions of Sec. 4 of the 2013 Act, as it is a single workplace. If we apply this legal reasoning to the problem at hand, a Co-ICC proves to be the answer for a co-working space. This precedent proves to be important as the factual scenario of the case is similar to the intricacies of co-working spaces.
Thus, we must keep in mind that concepts like employee or employer must be defined very broadly to leave no wrongdoer unpunished and no workplace unregulated. The use of co-working spaces, though new, has become a practice in India. Therefore, a broad interpretation of the Act can prove to be a boon for female employees with offices in such co-working spaces all over the country. 
References:
​[1] GCUC, Why Co-working,  https://gcuc.co/about/why-coworking/.
[2] Ben Waber, “Workspaces That Move People,” Harvard Business Review, Oct. 2014, https://hbr.org/2014/10/workspaces-that-move-people.
[3] Government of India, Ministry of Finance, Press Information, State of the Economy in 2018-19 - A Macro View, July, 2019, https://pib.gov.in/newsite/PrintRelease.aspx?relid=191212.
[4] Jones Lang LaSalle, “India Residential Market Update: H1 2019,” July, 2019, https://www.jll.co.in/en/trends-and-insights/research/india-residential-market-update-h1-2019.
[5] National Association of Software and Service Companies, “Indian Tech Start-Up Ecosystem,” 2018, https://www.nasscom.in/knowledge-center/publications/indian-tech-start-ecosystem-2018-approaching-escape-velocity.
[6] Mamta Sharma, “Co-working sector is hot, but what's fuelling the demand for “cool” offices?,” Economic Times, July 12, 2019, https://economictimes.indiatimes.com/small-biz/startups/features/co-working-sector-is-hot-but-whats-fuelling-the-demand-for-cool-offices/articleshow/70186498.cms.
[7] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[8] Sec. 2(a), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 
[9] Saurabh Kumar Mallick v. Comptroller & Auditor General of India, 2008 SCC OnLine Del 563.
[10] Sec. 10, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[11] Sec. 11, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[12] Junior college is also known as higher secondary school, that is, class XI and XII and senior college is where a person achieves graduate position. Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC OnLine Bom 814.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.