Protect staff and business from sexual harassment this Christmas

Hoteliers, restaurateurs and landlords were given a scare last April when controversial ​changes​​ to sex discrimination laws made employers liable for the harassment of their staff by customers. But despite the changes being made over eight months ago, many employers are still unaware of what the implications on their businesses might be.​

The changes now mean that if for example, a member of staff finds sexual banter or requests for a date offensive, and their employer is not seen to be taking action to protect them, business operators could find themselves dealing out an unlimited sum of compensation.

Now with the busy Christmas period and its hoard of seasonal party bookings approaching, employers need to be more aware than ever about what the law stipulates, and how they should safeguard their staff, and themselves, from the behaviour of their customers.

What does the law say?

According to the Sex Discrimination Act 1975 (Amendment), the definition of harassment has now been amended to include comments or actions that are connected or associated with sex, rather than those made on the grounds of gender as the law had previously outlined.

So sexist jokes or banter, referring to staff as ‘love’ or darling’, eyeing and chatting up barmaids, and lewd, sexual behaviour toward staff or another customer that could be considered offensive, could land employers with a hefty fine, although Melanie Lane, partner of business law firm Olswang​, says the final definition falls in the hands of the tribunal.

“The test of whether the treatment in question amounts to harassment is not subjective – it will not amount to harassment merely because the complainant says that it does,” she explains. “However, an Employment Tribunal is obliged to take the complainant`s perception into account in making that assessment.”

The law now states that unless the employer has taken ‘reasonably practical’ steps to protect his staff from harassment where it is known to have occurred on two other occasions during the course of employment, he may be liable for damages.

For instance, if despite making complaints to management on more than two occasions, a bartender continues to find himself in a position where he/ she receives lewd or sexual remarks from a customer that makes him/ her uncomfortable, the employer may find themselves in a position of liability.

However, changes to the law now say that the incidents of harassment do not necessarily have to involve the same third party, meaning employers will have to safeguard their staff from all customers, not just one or two that are known to be tricky.

Sue Addis, managing director of Donatello’s​ Pizzeria in Brighton, said that to look out for her staff, she avoids putting them in situations where an act of harassment may arise.

“If we have a group of men or a stag night we would be careful who we put on their table. I wouldn’t put a pretty young girl who is maybe quite new with us to look after them. We would obviously send the right person instead.

“Also, we have a policy that when take a booking we ask a stag or hen party if they are going to behave. We do actually question them beforehand, so we sound it all out before they actually come. If they’ve had too much to drink by the time they get to us then we cancel their booking and stop the party at the door.”

Addis also ensures that all staff, including management, are aware of the restaurant’s protocol if they feel they are being harassed by a diner. “The staff are told not to deal with the problem themselves. If they’re offended in anyway, they are to report to the manager who will then deal with the customer.

“The manager would then go over to the person involved and quietly ask him to stop whatever comments he’s making or to apologise to the member of staff, and normally any problem we have is sorted out at that stage. They realise that what they’re doing is being taken seriously and they know if it goes on any further they would be ejected from the restaurant.

“It’s important for management to know how their staff are feeling, and look out for their safety.”

How to avoid liability for sexual harassment from customers

Although alcohol is likely to be flowing a lot more than at other times of the year, creating troublemakers from otherwise sensible members of the public, there are several measures employers can take to ensure the safety of their staff over the Christmas period. Lane says that the new legislation is likely to be more ‘problematic’ for businesses that deal with customers on a daily basis, including restaurants, hotels and pubs, and has outlined several simple steps employers can take to prevent any crippling law suits at a time when most businesses are struggling to stay afloat anyway:

• Employers should review their equal opportunities and harassment polices to ensure that the new definition of sexual harassment is incorporated. Employers should also bear in mind that the new definition of harassment opens up the possibility of claims by employees offended by conduct related to the sex of a third party. For example, an employee may now bring a claim if they have merely witnessed an act of harassment involving a third party, even where the third party is of the same sex. Employers should therefore ensure that they pay sufficient attention to employees who have not been the primary target of harassment but who have nonetheless been affected by it.

• Employers should make it clear to customers and clients that harassment of their staff will not be tolerated. Operators should consider putting up posters/signs in their branches making this clear.

• Employers` equal opportunities and harassment policies should be amended to provide for employees to report instances of harassment by third parties.

• Employers should ensure that they record reported instances of third party harassment and take any appropriate action.

• Operators should also consider training branch managers and security staff to recognise harassment by third parties and take immediate and appropriate steps to prevent it.

• It is important to remember that an employer will only be liable for third party harassment if they have failed to take reasonably practical steps to prevent it.