Employers could face claims over customer harassment as new rules take effect

Employment solicitor warns that updating policies alone will not be enough as employers face greater responsibility for protecting staff

Businesses are being urged to review how they protect staff from workplace harassment ahead of changes that could leave them liable for the behaviour of customers and suppliers.

From 30th October, employers will be required to take ‘all reasonable steps’ to prevent sexual harassment, strengthening the existing requirement currently expected . A separate change will introduce liability for employers where employees are harassed by third parties. 

Katie Bullimore, employment solicitor at Smith Partnership, said businesses need to consider where staff could encounter harassment and whether their existing arrangements provide adequate protection.

“The requirement to take all reasonable steps places a greater obligation on employers to show that they have done everything they reasonably could to prevent sexual harassment” she said.

“Employers need to understand what the changes cover and ask what they can do to prevent harassment happening within their own workplace.”

The third-party provisions will extend beyond sexual harassment to other forms of harassment covered by the legislation. Katie warned that businesses should look beyond their relationships with customers when assessing their exposure.

“It’s not just about customers coming into an office. It could involve suppliers, people making deliveries or contractors coming in to fix the lighting. If those third parties engage in behaviour that constitutes harassment towards staff, the employer could potentially be liable.

“That places a significant responsibility on employers. They need to think now about where their particular risks lie and what they can do to address them.”

Businesses whose employees have frequent contact with the public, particularly those in hospitality, should pay close attention to the changes. However, Katie said employers should avoid assuming that staff in less public-facing roles are unaffected.

“The risks may be quite obvious where someone works on reception or behind a bar and regularly encounters members of the public” she said.

“They may be less obvious where staff work from home or have less frequent contact with people outside the business. Employers still need to consider those working arrangements and who their staff engage with through their work.”

That review may require businesses to revisit supplier contracts and the information they provide to visitors, alongside their internal employment policies.

“If you have a regular supplier, is there anything in your contract making clear that harassment of your staff will not be accepted?” Katie continued. “Employers should look at what is already included in their contracts and other information provided to third parties.

“A sign at reception or behind a bar explaining that harassment of staff will not be tolerated can help communicate expectations, but employers need to think beyond that.

“An employer may have a general harassment policy without having properly considered whether it needs more specific provisions on sexual harassment. Reviewing training is another practical step. Appropriate training can help staff understand unacceptable behaviour and demonstrate that the employer has taken action to reduce the risk of harassment.”

However, she warned that revising documents without explaining the changes to employees would leave a significant gap.

“It is all very well changing your policies and contracts, but if you don’t communicate those changes, that will undermine the steps you have taken.” Katie said, “Staff need to know how to raise concerns and understand how to use the procedures available to them. Employers need to make sure those policies are understood and put into practice.”

Businesses should also carry out risk assessments that reflect their own working environment and retain evidence of the action taken in response.

“Tribunals will want to see that an employer has properly considered the risks within its own business. This should not be treated as a tick-box exercise where someone follows a generic list without considering whether it addresses the circumstances of their staff.

“Employers should ask where their risk areas are and how they have identified them. Keeping records of risk assessments, and any changes made as a result, will help demonstrate that they have proactively taken steps to prevent harassment.”

Further regulations are expected to provide more detail about the steps employers should take to prevent sexual harassment. In the meantime, Katie said existing Equality and Human Rights Commission guidance offers a starting point for businesses reviewing their arrangements.

“There is already guidance available setting out measures employers can consider” she said. “That is a useful place to start if a business is unsure what it should be doing.

“However, there is no single approach that will suit every organisation. Larger employers with greater resources are likely to face higher expectations. Employers need to apply the guidance to their own business and make sure their procedures reflect their sector and workforce.”

With the changes approaching, Katie’s advice is for employers to check that their documentation is current and that they can demonstrate how preventative measures work in practice.

“Good record keeping should already be happening” she said. “The priority is to understand the changes and make sure the relevant documents are up to date.

“Employers should be asking whether they understand what sexual harassment covers and the implications of the new liability for third-party harassment and what they could reasonably do to prevent it happening within their business.”