Ask about… Retail, Fashion & Hospitality

I am head of HR for a high street restaurant brand. In the run-up to Christmas, we naturally have lots of party bookings. We’ve received a written complaint from a female server in one of our busiest restaurants about an incident that took place with some customers who are part of a group party booking.

The server and a male colleague were working on this party’s table. She says that throughout the evening the customers - who were all male - subjected her to behaviour which she says was sexual harassment. According to the complaint, this started out with lewd comments and sexual innuendo but gradually became worse, moving to personal comments and abuse (she gave some examples of an explicit sexual nature) and also inappropriate touching (she used the word “groping”).

She says that she told the manager on duty about the conduct of the customers quite early on in the evening, but she did nothing to help her. The complaint goes on to say that she objected again later when the conduct was getting worse, but the manager told her she was “too busy to sort it out” herself and, as the party had nearly finished their meal anyway, she didn’t want to risk them not paying at the end of the night. The server says that the manager told her she should “grin and bear it” and “think of the tip”. 

We are going to investigate what happened under our grievance procedure, but I’m concerned about our legal position here. Obviously this conduct is not something we would condone for our employees, but what can we do when it is the customers who are behaving inappropriately? We can’t predict whether customers are going to behave like this and it can be difficult to stop this type of thing altogether.

What are our responsibilities in this type of situation? Are there risks of potential sexual harassment claims against us from our employees because of customers’ actions?

A. You can’t control what customers may decide to do. Tell your managers that they can and should throw out customers who are being offensive like this, but there is no risk of claims by affected employees.

B. There is no risk of any potential claims against you because the provisions in the Equality Act 2010 (“EqA”) regarding third-party harassment have now been repealed. With the recent #MeToo movement there have been calls for them to be reintroduced, but that has not happened yet.

C. You are not vicariously liable for the actions of third parties such as customers, but there is still some risk of employee claims. Ensure that your managers have proper training in how to deal with these situations. In this case, it sounds like the manager could have intervened to try to protect your employee from this conduct.

D. A restaurant is a public place and you do not have responsibility for what third parties may do when they are in the restaurant. If your staff think customers are really overstepping the mark, they should call the police.

The correct answer is C.

For a brief period of time, there were provisions in the EqA under which an employer could, in some circumstances, be held liable for the discriminatory actions of third parties. While these provisions were repealed in October 2013, you cannot be complacent about discriminatory and abusive conduct by third parties such as customers. There is a still a risk of employees bringing discrimination or constructive unfair dismissal claims. You also need to consider your duty of care for the health and safety of your employees in respect of potentially violent incidents.

Before the EqA came in, an employer's inaction in the face of third-party harassment would not itself amount to harassment unless the inaction was for a discriminatory reason - it had to be "on grounds of" a protected characteristic. The current definition of harassment in the EqA has a different test - harassment can now occur where conduct is "related to" a protected characteristic. This allows employees to argue that an employer's inaction in the face of third-party harassment was itself unwanted conduct, "related to" a protected characteristic, that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them. This argument can be run regardless of whether the employer knew the employee had been harassed by a third party.

Whether any such claim will succeed will depend on the circumstances. In a case in 2010, the Employment Appeal Tribunal took the view that an employer’s inaction in the face of third-party harassment would only rarely “create” a hostile environment for the purposes of the EqA harassment definition. If you do nothing to protect your employees from third-party harassment, however, employees may still try to pursue a claim. They may perceive that it is your responsibility to prevent harassment, even if ultimately their claim may fail legally.

Another possibility is that an employee may consider that your failure to deal appropriately with abusive customers is a breach of the implied term of mutual trust and confidence. This could lead to a claim of unfair constructive dismissal - or intimation of such a claim - if the employee has more than two years’ service.

Remember also your duty of care regarding the health and safety of your employers, including providing a safe place of work. You should take appropriate steps to deal with abusive and potentially violent customers, while ensuring that managers and other employees know they should not put themselves into personal danger when trying to protect colleagues.

As is often the case, the key is effective training. All managers should receive training on your organisation’s statutory responsibilities regarding discrimination, harassment and health and safety. They should also undertake practical training in how to deal with situations where customers are being offensive or abusive - whether or not this is of a sexual nature or related to an employee’s protected characteristic - or threatening violence. This may include calling the police in certain circumstances. In addition, all employees should receive training on how to respond in these situations. They need to feel they have a safe and non-discriminatory environment in which to work, and know what to do if that environment is threatened in any way.