One of our barmaids has complained about being sexually harassed by our customers (regulars and one-offs). We have told her that it is just part of the job and customers like young female staff who are pretty. I also told her that the law has changed so we cannot be held responsible.
Peter replies:
You are right the law in the Equality Act changed in October 2013 to avoid you being automatically liable for harassment by third parties such as suppliers or customers, but it is not that simple.
The law contained a provision known as the “three-strikes rule”, for which the employer could be held liable. The harassment did not need to be by the same third party or be of the same nature. If she has 2 years service then she could bring a constructive dismissal claim and would probably win if you do nothing about it and do not treat her seriously.
The bigger risk is of sexual discrimination/harassment which is not only potentially more expensive but also does not have a length of service criteria and she could bring a claim whilst still being employed by you.
The removal of the third party harassment provisions from the Act does not remove the employer’s risk of liability to an employee for harassment by third parties, as employees can claim under the general harassment provisions of that Act or under the Protection from Harassment Act 1997. Employers are still at risk if they:
- become aware of any harassment or potential harassment of their employees by third parties and
- do nothing about it.
This would involve arguing that your inaction is conduct “related to” a protected characteristic causing a hostile, intimidating, or degrading environment. So you might be responsible for a hostile environment initially created by a third party, which is made worse by you, the employer, in the way you handled her complaint. It would even be argued that you had “created” that environment. You could also face an indirect discrimination claim. The employee might argue that your inaction is a provision, criterion, or practice (PCP) that places them at a disadvantage, because of their protected characteristic.
The slight comfort is that in Sheffield City Council v Norouzi, the Employment Appeal Tribunal commented that some workplaces may inevitably expose employees to a risk of harassment that cannot be easily eradicated, and urged tribunals not to find employers too readily liable unless they can point to specific failings.
You should therefore encourage employees to report any third-party harassment and take reasonable steps to prevent it, given the potential claims that can still be brought.
This will mean:
- warning the ‘regular offenders’ that such behaviour is not acceptable
- encouraging prompt reporting of non-regulars that they will be ejected if they persist with their conduct.
I would not recommend posting the sort of notices that one sees in hospitals or other Government buildings.
You should also, with some caution, advise her on how best to deal with such remarks. Perhaps get her to talk to other female members of staff as to how they react when in a similar situation, so that she feels more confident in explaining to customers that such comments are not welcome and make her uncomfortable.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. Before you take any action make sure that you know what you are doing, or call us for specific advice.
