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.
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