The Hospitality sector, Harassment and Employers’ new duties.

The Employment Rights Bill: how will the duty to not permit third parties to harass employees affect the hospitality sector?

Introduction

On 10 October 2024, the Labour Government introduced the Employment Rights Bill (“the Bill”), which is currently at its 2nd reading in the House of Commons. One of the many proposed reforms set out in the Bill is a duty on employers to not permit third parties to harass their employees. This would cover harassment on ground of any of the protected characteristics, as well as sexual harassment.

Clause 16 of the Bill contains the following amendment to section 40 of the Equality Act 2010 (“EqA 2010”):

“(1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A.

(1B) For the purposes of subsection (1A), A permits a third party to harass B only if –

• the third party harasses B in the course of B’s employment by A, and

• A failed to take all reasonable steps to prevent the third party from doing so.”

An employer will become liable under clause 16 of the Bill if, for example, a customer or client harasses one the employer’s employees or workers whilst carrying out the function they are employed to undertake and a Tribunal finds that the employer failed to take all reasonable steps to prevent the customer or client from committing the harassment. If enacted, this will have far-reaching consequences to sectors such as the hospitality sector, which is client facing in nature. The requirement to take “all” reasonable steps is particularly significant.

In this blog, we give you our views on the impact of this proposed new law in the hospitality sector, the challenges employers face in complying with their duties and how these might be overcome.

Background and current law

The duty to protect workers from third-party harassment previously formed part of the EqA 2010. However, the law was repealed in 2013 since the then Coalition Government regarded those measures to “impose an unnecessary burden on business” (see Explanatory Note to the Enterprise and Regulatory Reform Act 2013). 

It nonetheless remains possible under the current law to establish liability from an employer’s inaction or particular way of dealing with complaints of third-party harassment. For example:

• If a private members club employee complains that she had been sexually harassed by a customer and her employer refuses to take action because “the customer always comes first”, this could amount to indirect discrimination under section 19 EqA 2010. The refusal to take action could be seen as a provision, criterion or practice that puts women at a particular disadvantage in comparison to men, since women are more likely to be victims of sexual harassment at work. An employer is unlikely to succeed with a justification defence in these circumstances.
• The manner in which an employer handles a complaint of third-party harassment could also constitute direct discrimination under section 13 EqA 2010. Using the example above, a female employee may rely on section 13 EqA 2010 if it is argued that the employer would have taken action if the complainant was a male employee. Such a difference in treatment may be found to arise, for example, from perceptions within management that female staff may be “less likely to cause a fuss.”

The proposed law and the practicalities within the hospitality sector

If the new law is enacted, this is likely to prove problematic for those employers in the hospitality fields. When facing a claim, the employer will need to show it took all reasonable steps to prevent harassment from the client / customer. No doubt factors such as an organisation’s size, resources and the cost/practicability of implementing certain precautionary measures will be taken into account. Nonetheless it is clear that the nature of environments and experiences sought by customers in the hospitality sector makes this a particularly onerous duty. 

Looking at possible scenarios, what might an employer implement when considering the duty to take all reasonable steps?

• Should a hospitality establishment ban a customer who has previously committed harassment by, for example, acting in an inappropriate way with the female staff by leering at them or making inappropriate comments? The answer must be yes, where this is at all possible. Although this might be practicable for establishments such as a private members club (where access to the club is restricted to membership), this may prove to be more difficult to enforce in locations such as pubs or nightclubs which are generally open to the public at large, and the identification of customers is problematic. Although certain late-night venues (such as nightclubs and pubs) now use ID scanners, some employers might simply lack the financial resources to implement such technology within their establishment. A small organisation would, in our view, have to prove that they considered this step of using such technology but rejected it for very good reason. If implementation of technology is not a reasonable option, then the employer must consider other ways to prevent the customer from having access to the venue. 
• Should establishments consider limiting the sale of alcohol after certain hours? Although this might be seen as unreasonable for certain late-night venues such as nightclubs, other venues (such as private members clubs) might decide to take steps to limit the sale of alcohol after certain hours (such as beyond 11 PM) to reduce the likelihood of harassment occurring within their establishment.
• It is likely that various hospitality venues will increasingly make use of CCTV technology to serve as a powerful deterrent for bad behaviour, and for identification of possible perpetrators. Failure to consider such an option and the absence of good reasons for not having CCTV is likely to cause problems for the employer under the proposed law.
• CCTV needs to be considered alongside rights of privacy. It would not, for example, be appropriate to have CCTV in the toilet areas which in turn, may mean that it is not appropriate to have unisex toilets. 
• Asking all those who book restaurant tables or other spaces to provide identification for all those intending to accompany them? Without this, managing future exclusion of harassing customers may well be a problem.
• Having “private” sections of clubs and bars may prove to be a significant problem for employers should the law be implemented, and will most probably need to be re-visited, or have some form of safety built in. Examples include: (i) making ID obligatory on entry; (ii) putting signage making clear that harassment will not be tolerated; and (iii) installing “panic buttons” to alert other staff of the harassment. 
• As a bare minimum, hospitality venues (regardless of their size) may be expected to lay out ‘zero tolerance’ policies within their establishments and make clear that the venue reserves their right to expel patrons who are found harassing others and to report the incident to the police. This would not be dissimilar from various hospitality venues putting out notices informing their patrons that the venue has a zero-tolerance approach to illicit substance use. Clear and obvious signage prohibiting harassment will, we believe, become obligatory if the duty is to be followed.
• The use of “chaperones” or ensuring the presence of people with the experience and capacity to remove and control the unruly may be considered. If the organisation already uses bouncers/doormen, they may need to be given the appropriate training on how to recognise harassment and what to do in those situations.
• Without a doubt, a greater personal “policing” of large venues may well be regarded as a necessary or at least a reasonable step. Clubs that allow staff to wander among customers serving them, without any form of such protection are likely to struggle to defend themselves should claims be brought. 
• Consideration should be given to providing staff members with bodycams so that they are offered some form of personal protection against harassment and any incidents of harassment will be recorded.
• Introducing a clear and accessible policy for staff to follow if they believe that they have been harassed in the course of their work should be obligatory. This would include making it clear to whom an incident should be reported and setting out what the investigatory process will be. The policy would also need to make it clear that any person complaining will face no repercussions for reporting harassment.

Of course, a customer is not subjected to the same level of discipline or control compared to an employee or worker. As such, no establishment can require a customer to attend anti-harassment training. Complying with the proposed new duty requires, then, more imaginative thinking in these circumstances, such as establishments in a town, city or other geographical area sharing information about “difficult” customers. The interplay with data protection in these circumstances is of course a necessary further legal consideration.

In our view, even if the Equality and Human Rights Commission produces guidance to assist employers to comply with clause 16 of the Bill, employers within the hospitality sector are likely to face a proliferation of Employment Tribunal claims arising from third-party harassment. Regardless of whether all possible reasonable steps are taken, the employer may still have to bear the costs and inconvenience of having to defend a Tribunal claim. This also means that employers may be required to pay higher premiums when taking out employers’ liability insurance policies. How the insurance market reacts to the enactment of clause 16 of the Bill (for example, by excluding cover for Tribunal claims arising from third-party harassment or excluding cover where all reasonable steps have not been taken) remains to be seen.

Farore Law is a leading boutique law firm that has a wealth of experience in advising employers on their policies and procedures and providing training on harassment in the workplace. We also frequently advise and act for companies, senior executives and other individuals who are involved in claims involving any form of harassment. We also recognise the importance of anonymity and reputation management for all involved.

Please contact us if you require assistance with your company’s policies/training requirements, or if you require legal advice on how to deal with any issues you may be facing.