What duty does an employer have to protect staff from customer or client harassment? Laura Conway and Julian Yew examine the options.
New legislation came into effect in April this year which imposes liability under the Sex Discrimination Act 1975 on an employer that fails to protect employees during the course of their employment from third party harassment related to sex. Harassment includes unwanted conduct which has the purpose or effect of violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The employer will be liable where it knew the employee had been subject to harassment on at least two previous occasions by a third party.
In the recent case of Gravell v London Borough of Bexley, a Bexley Council employee was subjected to racist remarks by customers which she was told by the council to ignore. The Employment Appeal Tribunal interpreted the Race Relations Act 1976 to protect employees against the behaviour of third parties as well. It held that the council’s policy of not challenging customers’ racist behaviour had the effect of causing an offensive environment.
Preventive measures
It is difficult to predict when people on your premises are going to behave inappropriately towards staff. However, an employer will be able to avoid liability if it can show that steps were taken to prevent or reduce the risk of such harassment. It is therefore important for employers to consider preventive measures, not only to avoid liability under the new legislation but also to promote a safe working environment.
Customers need to be made aware that you are an equal opportunity employer and will not tolerate any form of discrimination or harassment against your staff. Employers should consider how this message is best conveyed and reinforced to its customers without affecting your service levels or the businesses’ ultimate brand promise. For some businesses, the use of prominent signage is the most direct and effective way of conveying the message. In the hospitality sector, the message will probably need to be more discreet.
A statement could be made in any prominent literature or contractual material such as the commercial terms of engagement. If employees speak to customers over the telephone, a message to this effect at the beginning of the call may act as a deterrent.
Considerations
Employers should consider which of their staff are most at risk of being sexually or racially harassed, particularly when left alone with customers and contractors. This may be when they are carrying out a personal service (eg, providing room service or performing a beauty treatment), or dealing with a customer on a one-to-one basis.
Policies need to be devised to minimise the risk. The options include use of a buddy system or personal alarms where the risk is particularly high. If the employee is dealing with customers over the telephone, you should consider informing customers that you are recording the call.
Staff should be trained to recognise unacceptable behaviour, and how to respond in these situations. Supervisors and line managers should have the authority to issue warnings to customers or, where the behaviour is becoming aggressive, to remove them from the premises. In bars and restaurants, an alcohol policy that refuses customers service after a certain level of intoxication may be effective in reducing alcohol-induced harassment.
Promoting an environment where staff are encouraged to report instances when they feel unsafe or nervous about a particular customer’s behaviour will hopefully allow the employer to intervene before an act of harassment takes place.
Legislation
The new legislation is designed to penalise those employers that are aware their staff have been subjected to sexual harassment, but have taken little or no action to prevent this from happening again. Policies need to be in place and staff must be trained to deal with any acts of harassment. After being made aware that a staff member has been harassed, limit the harm caused by sending the employee home or giving them a sufficient break, perhaps accompanied. In serious incidents, the employee may need to be referred to a counsellor.
Staff should be made aware of how to report any incidents, and who they should report them to. You want to avoid a situation where the harassed employee informs a colleague of the incident in question, so the employer is deemed aware of the harassment for the purposes of the legislation, but is given no opportunity to take reasonably practicable steps to avoid further incidents because the appropriate people were not told. Any reports of harassment should always be followed up and closed off using your grievance procedure. Hoteliers, restaurants and club owners who hire out their premises for functions should ensure that their commercial terms contain an indemnity to protect them from any harassment claims that arise from the behaviour of the hirer’s staff or clients.
Julian Yew is a senior solicitor and Laura Conway a trainee solicitor at Wedlake Bell
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Employer liability for a third party’s racial harassment
Key points
- Highlight your zero tolerance policy.
- Consider how to reduce the risk of harassment to employees.
- Train your staff to handle customers who start to behave inappropriately.
- Have a policy that sets out how staff should deal with incidents of harassment.
- Consider an indemnity in your commercial terms of hire undertaken.
