How the New Obligation to Prevent Sexual Harassment Can Safeguard the Hospitality Industry

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The effect of the conduct is assessed from the recipient's subjective viewpoint before objectively assessing whether it was reasonable for the conduct to have such an effect.  

Employers who fail to meet the new duty face serious financial and reputational risks.

Employers who fail to meet the new duty to prevent sexual harassment face serious financial and reputational risks. If an employee wins a sexual harassment claim in the Employment Tribunal and the employer is found to have failed to take reasonable steps to prevent it, any award may be uplifted by 25%. With no cap on awards for sexual harassment, this uplift can be particularly damaging.

Additionally, the Equality and Human Rights Commission (EHRC) can investigate businesses and enforce compliance, adding further pressure on employers.

The hospitality and leisure industry, with its high customer interaction and environments like bars, pubs, and night shifts, is especially at risk of such claims.

Employers may also be held responsible for sexual harassment committed by employees "in the course of employment," which can extend to incidents outside regular work hours, such as after-work social events or parties.

While an employee cannot bring a standalone claim for third-party harassment in the Employment Tribunal, employers are still obligated to prevent sexual harassment by third parties, including customers.

The steps an employer takes to prevent harassment must be reasonable based on factors such as the employer's size, resources, sector, and likelihood of contact with third parties. Harassment from third parties is particularly challenging in the hospitality and leisure industries due to the customer-facing nature of the work.

The increased obligations come at a time when high-profile allegations of sexual misconduct are being made, including against former employees of Mohammed Al Fayed, highlighting the ongoing risks.

The EHRC has identified power imbalances, especially when employees feel intimidated by influential clients or senior workers, as a key factor in increased sexual harassment risks.

These cases underscore the importance of creating a safe and supportive work environment where employees feel empowered to report misconduct.

The EHRC has published an 8-step guide for employers. This says that employers should (in summary):

1. Develop an effective anti-sexual harassment policy to provide workers with advice surrounding sexual harassment and the employer's internal processes for dealing with it;
2. Engage with staff to ensure that workers are aware of how they can report sexual harassment and the consequences of breaching the policy;
3. Assess and take steps to reduce risk in the workplace to consider the factors that might increase sexual harassment and take steps to minimise them. For example, this could involve barring individuals from pubs or restaurants who exhibit inappropriate behaviour towards staff or other customers;
4. Set up reporting procedures to ensure that they keep records of concerns;
5. Roll out training to workers and managers on what sexual harassment in the workplace looks like, what to do if they experience it or witness it, and how to handle complaints of sexual harassment;
6. Deal with complaints by promptly investigating any incident, offering support to the affected employee, and taking disciplinary action against the alleged perpetrator, if necessary. It is important to ensure the complainant is not victimised as a result of making a complaint;
7.  Address harassment by third parties including putting reporting mechanisms in place or assessing high-risk workplaces where staff might be left alone with customers. Employers could consider measures such as installing security cameras, providing additional staff during peak hours, or utilising security personnel to help deter inappropriate conduct;
8. Monitor and evaluate actions regularly to evaluate the effectiveness of the steps to prevent sexual harassment and implement any changes arising from any evaluation.

Complying with the new duty is an ongoing commitment for employers, not just a one-off task.

Even if a business has already taken steps to ensure compliance by drafting a policy or holding training sessions, it is important to regularly assess and improve any internal procedures.