How should hospitality employers deal with third-party harassment at Christmas parties?

If you work in hospitality, of course, you’re unlikely to be having your own Christmas party at this time of year. More likely, you’ll be vicariously “experiencing” other companies’ parties in the restaurant or hotel where you work. You may remember the scandal earlier this year about a male-only dinner hosted at the Presidents Club in London (now closed) where the female hostesses were allegedly subjected to sexual harassment by the guests. The matter was subsequently investigated by the Equality and Human Rights Commission, and the agency that supplied the hostesses agreed to make changes to its working practices.

Third-party harassment – a chequered history

So what is your position as a hospitality employer if guests in your restaurant or hotel harass your employees or otherwise behave inappropriately towards them? Clearly you could be vicariously liable for the conduct of an employee who harasses a colleague at your own party, but what’s the position if a Christmas party in your restaurant doesn’t know when to “say when” in terms of their behaviour towards your staff? 

Back in 1997 there was  the “Bernard Manning case”, when a hotel was ruled to have discriminated against its serving staff when they were subjected to harassment in the form of racist “jokes” told by the comedian at a function at which they were working. The House of Lords overturned that decision in 2003, however, making it more difficult to argue that an employer was liable for harassment of their employees by third parties. An employer's inaction in the face of third-party harassment would not be unlawful unless it was itself for a discriminatory reason - i.e. "on grounds of" a protected characteristic.  

Subsequently, the legal definition of sexual harassment was amended so that employers could be liable for third-party harassment in specified circumstances. This was then extended by the Equality Act 2010 (“EqA”) to harassment related to all protected characteristics. In October 2013, however, these provisions were repealed as part of the regulatory reforms introduced by the then Coalition Government. So the current position is that the EqA does not provide specific protection in employment against third-party harassment.

What approach should employers take?

Nonetheless, as a hospitality employer 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 or incidents which could result in personal injury (whether physical or mental).

• Discrimination claims: After the “Bernard Manning” rule had gone and before the introduction of the EqA, failure to take steps to prevent an employee from harassment was unlawful discrimination only where the failure to act was “on grounds of” the protected characteristic. But under the EqA, harassment can now occur where the conduct is "related to" a protected characteristic – i.e. a looser causal link. 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.

• Unfair constructive dismissal claims: 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.
• Personal injury claims: 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.