Harassment in the workplace

A big change in the law

Everyone knows about harassment in the workplace. For years, bullying or unwanted flirting have been illegal, as has being fired on the basis of your gender, or not hired because of it. This has been fine for people whose working lives are spent surrounded only by co-workers and their own employers. But what about event organisers where a great deal, if not the majority of time may be spent with people who are not employed by your company? Customers, clients and conference guests all make up the working environment and until later this year, if they harass someone else's employee, no one is liable.

That will soon change as a result of the High Court ruling earlier this year that determined the UK government had not properly implemented an EU Directive covering harassment in the workplace. The court held that the current legislation does not go far enough in protecting employee rights, and the Secretary of State must now make changes to remedy the situation. This is because the EU Directive envisaged all workplace discrimination, but UK legislation failed to cover responsibility for 'third party' breaches. Employers will have to think about introducing a policy on how to deal with harassment by clients or customers.

If you feel your company has not put adequate policies in place, now may be the time to look at them. Here's a list of (non exhaustive) advice that we've drawn up in partnership with the employment law specialists at Glovers solicitors:

  1. Employers should think about introducing a policy on how to deal with harassment by clients or customers. The policy should deal with the following issues (this is not a complete list):

    a.The policy should contain a detailed procedure for employees to follow if they feel that they are being sexually harassed.

    b. It should explain what the employee should do in an harassment situation. For example, the policy should explain in which situations employees are entitled to refuse to serve customers and the procedure to be followed.

    c. The policy should also confirm that they will be supported by the employer if the policy is followed.

    d. The policy should also explain whether or not the employee should advise the customer that they are uncomfortable or whether they should simply report the problem.

    e. The policy should explain the reporting procedure and what will happen next.

    f. The policy should explain when and in what circumstances it will be appropriate to assign a different employee (maybe of a different gender?) to deal with the person complained of. If a waiter/waitress complains to their supervisor that they are being sexually harassed by a member of the public and is instructed to ignore the comments and get on with the job, it is likely that their employer will be liable if the harassment continues. Depending upon the seriousness of the objectionable conduct, it may be necessary to reprimand or even eject the customer from the premises. Quietly assigning a different waiter/waitress to the table may dispose of the problem but if the unwelcome behaviour continues, the second waiter/waitress may potentially have a claim. After all, the employer was aware that there was a significant risk that they would also be sexually harassed by the customer in question.

  2. Once a policy has been introduced, supervisors and managers should receive training on how to deal with potential problems. All employees should also receive training upon its implementation.
  3. Consider whether it might also be appropriate to publish the policy at the place of business so that customers can, if necessary, be referred to it.
  4. Depending upon the nature of the business, other issues may arise. Do employees wear a uniform, and if so could it be seen in any way to invite unwelcome conduct? In the hotel and restaurant sector customers will often be intoxicated, making unwelcome behaviour on balance more likely. Employers should consider generally what more they can do to protect their employees - consultation with the current workforce may be useful and appropriate.