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Third party harassment: Sued by your own staff if customers abuse them?

As if life wasn’t tough enough for HR managers, things could have got a whole lot worse since the new Equality Act 2010 came into force.

According to Andrew Cochrane, the new equality legislation could leave businesses in open to litigation from employees if they fail to take reasonable steps to protect them from any form of discrimination by a third party, such as a customer. And naturally, the precise meaning of ‘reasonable’ in this context will be open to interpretation.

Third party harassment

This third party harassment forms part of an extension to the law introduced in 2008 that meant employers could be liable if their staff encountered discrimination on the grounds of sex. The new law will also cover discrimination on the basis of race, age, religion or belief, disability, sexual orientation and gender reassignment.

Employers should be doing all they can to protect their staff from any harassment anyway, but recent changes in the law have made it even more important for employers to treat third party harassment seriously.

The new legislation is set to operate on a ‘three strikes’ basis, so staff will be able to take action against their employers after just three incidents – regardless of whether this third party harassment involves three separate customers. So simply dealing with particular troublemakers might not necessarily solve the problem.

Whilst the legislation will affect all businesses that come into contact with the public, it is set to prove particularly problematic for certain sectors, for instance, pub and bar owners, who are going to find it nigh-on impossible to prevent customers from behaving inappropriately to the bar staff. What one customer thinks is friendly banter could easily be considered discrimination by a member of staff.

At present, as there is no cap on the size of discrimination payout, it could result in claims for unlimited damages for injury to feelings and loss of earnings.

It is imperative, therefore, that you take reasonably practicable steps to prevent a customer or client from harassing an employee in the first place.

For instance, if you hear banter which over-steps the mark, nip it in the bud immediately and explain that such comments are not acceptable. If a colleague makes a formal complaint, treat it seriously. Comments like “don’t worry, that’s just his way” won’t go down well at a tribunal. Talk to the complainant about how they expect the matter to be resolved.

It is important that your employees are in no doubt that harassment of any kind will not be tolerated. Let them know that you operate an open-door policy and they should inform you immediately if any alleged harassment has occurred.

Consider putting up posters in the staffroom reinforcing your ‘zero tolerance’ attitude to harassment by customers. You might also want to consider putting up a few carefully worded posters warning customers that visit your premises that you won’t tolerate harassment of staff, or even hiring extra security to protect them.

We all agree that anti-discrimination legislation is necessary – and most businesses already see it as their responsibility to try and protect their staff from abuse. It is important, however, that these new laws don’t leave certain kinds of businesses exposed to claims from unscrupulous staff in search of an easy pay-out and I hope the courts are sensible in determining to what lengths an employer can reasonably be expected to go.

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