Third party harassment: will you have to 'police' customer conversations to ensure they don't offend your staff?

Once the Employment Rights Bill becomes law, employers will become responsible for unlawful harassment their staff experience at the hands of third parties. We look at what the new duty requires you to do and how to prepare for it.  

Third party harassment

The Employment Rights Bill proposes to make employers responsible where a third-party, such as a client or a customer, harasses a member of staff in the course of their employment. You will only be able to successfully defend this type of claim if you can show you have taken all reasonable steps to prevent it. 

Harassment is when an employee is subjected to unwanted conduct that is related to a protected characteristic (e.g. sex, age, disability) or is of a sexual nature, that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. Whilst this part of the test is largely subjective, there is an objective element. Tribunals will also consider whether it was reasonable for the conduct in question to have that effect on the employee bringing the claim.

Not all protected characteristics are included. Marriage and civil partnership and pregnancy and maternity aren't included in the definition of harassment under s26 of the Equality Act 2010 and are, therefore, also excluded from these new provisions. 

Employer liability for third-party harassment is not a new concept. Under the Equality Act 2010, employers were liable if a third-party harassed an employee in the course of their employment and they didn't take all reasonably practicable steps to prevent it. However, you had to know that your employee had been harassed on at least two separate occasions by the same or a different third party before an employee could bring a claim. The government repealed this on 1 October 2013. 

Note: this time around prior knowledge isn't required and you will, potentially, be liable everytime a member of staff is harassed by a third party. 

Does this mean you have to impose a ‘banter ban’ on your customers or clients? 

No, but you will have to take action to protect your staff if they are harassed. But deciding where the line should be drawn won't always be easy.

The Equality and Human Rights Commission (EHRC) in written evidence to the Public Bill Committee, believes that the proposals raise complex questions about how to strike the appropriate balance between third parties' rights to freedom of expression (Article 10 European Convention on Human Rights) and employees' protection from harassment and their right to private and family life (Article 8 European Convention on Human Rights).

It accepts that Article 10 is a qualified right and can be restricted where it is necessary, there is a legitimate aim and the steps taken are proportionate. But, it says that the government hasn't properly analysised whether the Bill is proportionate or addressed the particular problems employers face if their staff complain about overhearing conversations they find offensive. It also highlights that this difficulty will be compounded if the third party is expressing an opinion that could be considered a philosophical belief under the Equality Act 2010, and thus protected from discrimination. 

Some of these concerns have also been voiced during the Bill's passage through parliament. For example, during a debate in the House of Lords, Lord Young of Acton asked, “how will publicans be expected to protect their employees from overhearing customers' conversations that they may find offensive or upsetting by virtue of their protected characteristics?”. 

The government has rejected suggestions that certain types of overheard conversation should be ‘carved out’ from the Bill  such as political, religious, moral or social opinions. It believes this isn't necessary because “any step by an employer that would result in a disproportionate interference with a third party's right to freedom of expression would not be a ‘reasonable step’.”  

How to prepare

The Bill is expected to receive Royal Assent in July before parliament's summer recess. However, additional commencement regulations may be required, making the exact implementation date uncertain.

We recommend that you start to prepare now - particularly if your staff regularly come into contact with members of the public. The retail and hospitality sector will have particular challenges.  

The government has published a factsheet on the new duty. It says that employers have limited control over third parties compared to their own employees and “employers will not be penalised for failing to take unworkable or impractical steps. For example, this clause would not require employers to foresee the wholly unforeseeable or police all customers' private conversations.”

The government has also said that “There is no expectation that employers will be able to stop all harassment from ever occurring to their employees, or that they should be expected to intervene directly in all incidents. That would be impossible. Employers will not be penalised for failing to take unworkable or impractical steps.”

So what are you expected to do? 

You will be required to take all reasonable steps to prevent harassment. This is a high standard and what is considered reasonable can vary.  

The starting point is a risk assessment. We recommend that you update your existing risk assessment to cover all types of harassment, including from third parties, and then consider what steps you can take to prevent this. 

Reasonable steps might include:

• Displaying visible warning notices making it clear that you will not tolerate your staff being harassed or abused by customers/clients and what steps you will take if they are
• Informing third parties, when they make a booking or in a specific policy, that harassment of staff will not be tolerated 
• Carrying out a full investigation if concerns are raised and banning customers from the premises where appropriate
• Training managers to intervene, defuse situations and carry out effective investigations

We are hosting a free webinar to help employers understand and prepare for this new duty. If you'd like to attend, please sign up here.

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