The hospitality industry is, by definition, focused on customers. Excellent customer service is often the difference between success and failure. But numerous scandals in the hospitality industry in recent years have revealed a risk of sexual harassment in the workplace, with reports of employees being harassed by colleagues and third parties, including customers.
However, in the last couple of months, legislation has been introduced which gives employees better protections from sexual harassment - and employers need to take note.
The legislation imposes a new proactive duty on employers to take reasonable steps to prevent the sexual harassment of their employees, whether or not any complaints of sexual harassment have been received. The Equality and Human Rights Commission (EHRC) has also updated its technical guidance to say the duty to prevent sexual harassment also applies to sexual harassment by third parties.
So, what does this mean for the hospitality sector?
Employees have for many years been able to bring claims against their employer if they are subject to sexual harassment by a colleague. Under the new rules, an employee would not be able to bring a standalone claim for sexual harassment by a third party in the employment tribunal, but the EHRC could take enforcement action against the employer for failure to prevent third party harassment.
That enforcement action could include requiring an employer to prepare an action plan of how it would remedy the breach or to enter into a binding agreement with the EHRC to prevent future breaches.
Where an employee brings a claim in an employment tribunal for sexual harassment by a work colleague and that claim is successful, the new rules require the Tribunal to then go on and consider whether the employer had taken reasonable steps to prevent the sexual harassment happening in the first place. If the Tribunal is not satisfied that the employer has done enough, it can result in a 25% increase in any award of compensation made to the employee for the sexual harassment.
What then are the ‘reasonable steps’ which employers have to take? That will depend on the employer, its resources, the sector in which it operates, the working environment and the risks which might arise, including the third parties with whom workers may come into contact.
In the hospitality sector, this could include the possibility of working alone with a third party, the presence of alcohol and those who work closely with customers.
This should not be seen as a tick box exercise. Businesses could face potentially costly consequences if they cannot demonstrate compliance with the new duty. Some of the key steps that employers in the hospitality sector should be taking now are:
- Making it clear to third parties, particularly customers, that harassment of your employees will not be tolerated and appropriate action will be taken. This may include posting signage in your venues, backed up by a policy about the action to be taken.
- Training employees and providing them with the skills to recognise and challenge inappropriate behaviour, as well as clear steps on how to escalate this when needed.
- Broader anti-harassment training and anti-harassment policies should be reviewed or introduced. These will likely need to be tailored to different individuals depending on their roles – for example, management should be trained on how to investigate allegations of sexual harassment.
- All suppliers and contractors must be made aware of policies in place and conversations should take place to ensure they know the consequences of breaching those policies. It may also be necessary to audit what training they provide and mandating that this includes anti-sexual harassment training as part of your agreements with them.
- Risk assessments, designed specifically for your business, will be key in identifying particular areas that may need to be focussed on and where employees may be most likely to experience sexual harassment.
- Providing employee support in the event third party harassment does take place.
The introduction of this duty is also an ideal time for businesses to revisit their board-level strategies on D&I more generally. It is vital that any changes made to policies, procedures and training are accompanied by a culture change and this should come from the top.
It’s important to remember that this duty is ongoing, and businesses should reflect this in their actions. Training needs to be continuous, ensuring both new hires and current employees are always up to date.
Additionally, any changes in strategy should be regularly evaluated. For instance, maintaining a centralised record of complaints can help analyse trends, and staff surveys can provide valuable insights. However, you should ensure that you comply with any data privacy requirements if you are keeping a centralised record.
This is not the end of the story. The government has introduced an Employment Bill which aims to overhaul UK employment law, and proposes reintroducing direct employer liability for third-party harassment across all protected characteristics, as well as requiring employers to take “all” reasonable steps to prevent sexual harassment. Taking steps now will help ensure that the industry is well-prepared for the future and any more changes that are incoming.
Content provided by Eversheds Sutherland