A new High Court ruling has made the employer liable for any sexual harassment, be it boisterous, discontented or amorous, of their staff at the hands of the public
A new law has been passed in which the High Court ruled conclusively that employers can be sued by male or female staff who regularly experience sexual humiliation or harassment by the public. Consequently, gone are the days when a restaurateur could afford to stand by and watch while a waitress, waiter or receptionist was bothered by a boisterous or discontented customer unhappy with their service, having a bad day or, at the other end of the scale, feeling amorous. The law will force the restaurateur to protect their employee in such a situation or face the prospect of a lawsuit.
The old law only protected an employee from harassment by his or her employer, and while the courts had said that public harassment should also not be put up with, the government had chosen not to consider public harassment in its equality regulations.
The breakthrough ruling came after the watchdog Equal Opportunities Commission successfully took the government to court and accused it of failing to implement a European directive to increase protection for women workers from sexual harassment and discrimination in the UK workplace.
The Commission was concerned about the lack of clarity of existing law which caused confusion and uncertainty about the extent of an employer and employee's legal rights and obligations, and said that this led to expensive, stressful and time-consuming litigation. The position is now clear. Just as a restaurateur cannot harass a member of his staff, he or she cannot now sit back and allow the public to do so.
The Commission particularly singled out the hotel and restaurant sector, which employs about 670,000 women, as being rife with harassment by the public. Unless restaurateurs act now to stop any known current and continuing harassment, the sector may be open to a flood of Tribunal claims by harassed employees.
To protect themselves as well as their staff, restaurateurs should implement a new policy or change an existing policy to make it clear to staff that any harassment, including acts by the public, will not be tolerated by them in the workplace, and should back this policy up with action where necessary. When encountering a situation where a staff member is being regularly harassed by a customer, the restaurateur should now always intervene to send a message that such behaviour will not be accepted. Restaurateurs also need to listen to their staff if they claim that they are being harassed. It should be recognised that each employee is different and where one waiter or waitress may brush off mild taunting and flirtatious banter as an occupational hazard, another may be very upset by the experience.
Minor or not, all claims should be dealt with seriously. The High Court clarified that the definition of harassment is wide and includes "any unwanted conduct related to [the employee's sex] which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment."
Employees experiencing unwanted public attention in the workplace should no longer work on in silence but make the harassment known to their employers so both parties can work together to resolve the issue.
The old adage that the customer is always right remains prevalent in many restaurants across the UK, and undoubtedly, good and considerate service greatly contributes to their success. However, restaurateurs should carefully balance this need with the wellbeing of their staff, especially in light of the High Court ruling, which strongly affirms that the customer is not ‘always right', particularly if he or she regularly harasses your staff.
How to protect your staff – and yourself
- Implement or add to an existing harassment policy to make it clear that employees ought to be treated with dignity, respect and be free from harassment by management, colleagues and the public alike. Say that it will be your duty to stop all known public harassment.
- Confirm in your policy that all serious breaches will be dealt with and clarify the informal/formal route of complaint that staff should take if customers are harassing them.
- Train all staff, including line managers, about their rights and obligations following the High Court ruling and in general about harassment and bullying at work.
- Turn a blind eye and do nothing while an employee is being harassed by a customer.
- Ignore your staff if they complain about public harassment.
- Remember, all staff have different toleration levels.
- Let your business need to impress your customers dictate the health of your staff, otherwise you risk a Tribunal claim against you.