Legal advice: What happens if a customer harasses your staff?

Most responsible employers would want to protect their staff from any harassment from customers but recent changes in the law have made it even more important for employers to treat harassment from customers or clients seriously.

What are the changes to the law?

The current law which prohibits discrimination on grounds of sex, race, religion or belief, age, disability and sexual orientation contains express provisions prohibiting harassment on any of those protected grounds.

In 2005, regulations came into force which made clear that the Sex Discrimination Act covered both harassment on grounds of sex (such as where a female colleague is told "not to worry her pretty little head" about something) and sexual harassment (e.g. where the harassment is sexual in nature rather than just on grounds of sex). These changes were brought into force to supposedly implement a European directive called the Equal Treatment (Amendment) Directive. However, the wording of the regulations did not reflect the directive.

The Equal Opportunities Commission (EOC) - now part of the Equality and Human Rights Commission - took action in the High Court to judicially review the government's implementation of the regulations and claimed that the wording of the regulations did not adequately afford employees the protections intended by the directive.

Among the provisions the EOC claimed had not been implemented properly were those regarding harassment. The EOC won the judicial review and the government re-wrote the regulations. The result is the snappily entitled Sex Discrimination Act 1975 (Amendment) Regulations 2008 which came into force this month.

What the 2008 regulations say

Harassment is defined as "unwanted conduct that has the purpose or effect of violating (her/his) dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment (for her/him)." It can take many forms. On one level there is targeted harassment where someone is the butt of jokes or comments. There can also be environmental harassment, where a staff room has pictures of topless models on the calendars or there is general banter about sex or sexual activities, for example.

As a result of the EOC's success, the 2008 regulations now say that harassment can be "related to her sex or that of another person", whereas before any harassment had to be "on grounds of her sex". The result is that a woman (or a man) only needs to show that the alleged harassment was connected or associated with sex and not that it took place because of their gender.

The 2008 regulations also bring into force a new right for employees to take action against an employer who fails to take reasonably practicable steps to prevent a third party from harassing him or her. However, liability will only fall on the employer where the harassment is known to have occurred on at least two other occasions. This is often known as "third party harassment".

Third party harassment

So what does this mean for publicans? How can third party harassment arise and how do you deal with it?

Let's say one of your regulars (Bob) gets a bit tipsy and comments on the chest size of a female colleague who is serving him. You overhear this but say nothing because Bob is a decent bloke and it's only the drink talking.

Unfortunately this happens a few Friday nights in a row and the female colleague eventually approaches you to say she's fed up listening to Bob's comments. It's likely that Bob's behaviour would amount to unwanted conduct that has the effect of creating an offensive environment for that member of staff. Even if Bob did not intend his comments to have that effect, what matters is how the female member of staff reasonably perceives his comments.

As you know that the harassment has occurred on at least two other occasions and have not taken any reasonably practicable steps from preventing it from occurring, you could be exposed to a claim of harassment under the 2008 regulations.

What amounts to "reasonably practicable steps"?

As the 2008 Regulations have only just come into force, we don't yet know how far an employer will need to go to show that they have taken "reasonably practicable steps" to

prevent a customer or client from harassing an employee in the first place.

However, there are some sensible steps you can follow when faced with any such complaint:

• If you hear banter which over-steps the mark, nip it in the bud straight away by explaining that such comments are not acceptable.
• If a colleague makes a formal complaint, treat it seriously. Comments like "oh that's just Bob being Bob" are unlikely to go down well in a tribunal. Talk to the complainant about their wishes and expectations of how the matter should be resolved.

How you deal with the complaint will depend on a number of factors. If an employee does not wish any formal action to be taken, you may be comfortable simply having a word with the customer. But in repeat cases and where an employee is clearly upset by comments that have been made, you would want to take more serious action such as barring a particular offender.

Preventative measures

Of course, there are a number of things you can do in advance to ensure that matters do not get out of hand:

• Make sure you let employees know that you operate an open-door policy and they should not be inhibited about telling you if any alleged harassment has occurred. Make sure employees are in no doubt that harassment either by customers or fellow employees will not be tolerated.
• Reinforce this message in the staff handbook and at any training events.
• Consider putting up posters in the staffroom telling staff of your "zero tolerance" attitude to harassment by customers. If an employee does complain, you can show an Employment Tribunal that you were the sort of employer to take these things seriously.

You may also want to consider communicating this policy to customers. Obviously, we are not suggesting that customers be handed a guide to pub etiquette with their pint. But, if you are concerned that harassment may be a problem in your pub a few carefully worded posters would ensure that customers are left in no doubt that you won't tolerate harassment of staff.