What steps can the retail and hospitality sector take to comply with the new duty to prevent sexual harassment?

Businesses in the retail and hospitality sector are hopefully aware that a new duty to take reasonable steps to prevent sexual harassment of employees is due to come into force on 26 October 2024. Most businesses will no doubt be busy putting in place their strategies for how to comply with the duty.

However, one particularly important issue for the sector is the risk of harassment by third parties (such as customers, suppliers or contractors). The Equality and Human Rights Commission (EHRC) considers that the new duty extends to preventing sexual harassment by third parties, not just by employees.

In addition, the new Employment Rights Bill published on 10 October will, in due course, make employers liable for third party harassment unless they have taken all reasonable steps to prevent it. That will apply to all types of harassment, not just sexual harassment, although it may not come into force until some time in 2026.

Preventing third party harassment is a more difficult task than preventing harassment carried out by employees over whom businesses have more control and influence. There is also a difficult balancing act between wanting to be welcoming to customers and potentially needing to convey messages as to the standards of behaviour expected of them when dealing with your staff.

This is particularly important for the sector, as the risk of employees being harassed by third parties is, sadly, particularly high within retail and hospitality. A 2018 survey by Unite found that nine in ten hospitality workers had experienced sexual harassment at work. On a wider basis, British Retail Consortium research found that levels of violence and abuse against shop workers have risen 50% in the last year, with 1,300 incidents occurring every day.

Does the duty currently cover third party sexual harassment?

The suggestion that the new duty extends to preventing sexual harassment by third parties is arguably a little surprising given that the Equality Act 2010 does not currently make employers liable for third party harassment. Initially, the same Act of Parliament that contains the duty was also going to introduce liability for third party harassment but that was then dropped during the parliamentary process. A natural assumption to make would be that the duty is about preventing sexual harassment as currently defined in the Equality Act (i.e. harassment by employees).

However, despite the decision not to bring in liability for third party harassment, the EHRC's technical guidance works on the basis that the preventative duty does extend to sexual harassment by third parties. 

It seems that the reason for that is that the EHRC takes the view that employers can be liable for third party harassment in certain circumstances. Those include where a failure to deal with harassment of a worker by a third party amounts to direct or indirect discrimination or entitles an employee to resign and claim constructive unfair dismissal. Those potential claims arise more out of how an employer responds to a complaint than the harassment itself (for example, it could be indirect discrimination to have a policy of not investigating complaints of sexual harassment by third parties). However, the result is that the EHRC's existing guidance on harassment already recommended that employers should take steps to prevent harassment by third parties and that position is maintained in the updated guidance.

What is the impact if you do not comply with the duty?

Employees cannot bring freestanding claims for a breach of the duty. However, if an employee experiences sexual harassment and successfully brings an Employment Tribunal claim then an Employment Tribunal will be required to consider whether the duty has been complied with. If not, the Employment Tribunal could uplift any compensation awarded by up to 25%.

We will have to await case law to gain an understanding of what approach an Employment Tribunal would take if an employer has taken reasonable steps to prevent sexual harassment by employees but has neglected to take any steps in relation to third parties. However, it would be advisable for retailers and hospitality businesses to make sure that preventing third party harassment is a key part of their strategies, not least as it is in their employees' interests for them to take a broader approach.

What can you do to comply?

It is important to understand that this is a positive duty – a specific legal duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

It is, at this time, only a duty to take "reasonable" steps, although the new Employment Rights Bill will upgrade this to a duty to take "all reasonable steps". It remains to be seen as to how far Employment Tribunals will expect employers to go: the EHRC guidance is just guidance; and what is reasonable will depend on the size of the employer and nature of the workplace.

However, some key steps that you should take to comply with the current version of the duty include:

• Carrying out a risk assessment: This will help to identify the circumstances in which employees might be harassed and understand what steps can reasonably be taken to combat that. For example, housekeeping staff in hotels and servers in restaurants may be at greater risk of sexual harassment by customers than those working in other roles and industries. Additionally, don't forget that staff might be at risk from suppliers and contractors as well as customers.
• Revising policies: You should review existing policies to ensure they are fit for purpose and introduce policies on harassment if they are not already in place. Sexual harassment will need to be addressed separately to other forms of harassment. It is important to make sure that all employees are aware of your policies and the consequences of breaching them, so it would be a good idea to re-brief your policies out to employees to coincide with the new duty coming into effect. It is also worth looking at your policies for work related events as those can often have a heightened risk of harassment occurring.
• Reviewing the training you have in place: When did your staff last do any Diversity, Equity and Inclusion training and did it expressly cover sexual harassment? Going forward, it is likely that training will need to specifically cover sexual harassment. It may also be worth thinking about active bystander training (which gives staff the skills to call out bad behaviour where they see it) and specific training for managers in how to deal with complaints of sexual harassment.
• Planning and communicating a timetable for refresher training: Training should not be a one-off, and staff should be made aware of this and of when they will be required to take a refresher course. This will also help to show how seriously you take the issue.
• Considering how to communicate a zero tolerance policy to third parties: Once you have identified the risk, such as drunken customers sexually harassing bar staff or shoppers being inappropriate towards shop workers, it is important to think about how to deal with this. Would putting up a notice behind a bar or on a shop counter be sufficient? 
• Ensuring there are channels for employees to report harassment and making sure your staff are aware of these: As well as having clear grievance and disciplinary procedures, consider implementing a reporting tool that allows staff to anonymously report issues and incidents that they experience or witness. When it comes to complaints about third parties, you will need to do your best to investigate them whilst recognising that may be more difficult than with internal complaints.
• Taking action where sexual harassment is found to have occurred: It's no good having policies if there are no sanctions when someone has made a complaint and it has been upheld. From a third party harassment perspective, you may need to consider customer barring policies and what you will do if you do uphold a complaint raised against a third party.
• Regularly evaluating your actions: Keep your policies, procedures and other steps under review to gauge their effectiveness, and make any changes that you identify are necessary. This might involve assessing records of complaints you receive to see whether there are any trends you can identify, and considering lessons that can be learned from any complaints. Staff surveys can be good ways of monitoring how effective your anti-harassment policies and training are.

Retail and hospitality employers will need to think carefully about what steps need to be taken to prevent sexual harassment, including by third parties. Ideally, you should make sure measures are in place before the new duty comes into force on 26 October. However, compliance with the duty will be an ongoing process. Therefore, if there is a limit to what you can do before 26 October, you should do what you can by then and implement further measures as soon as you can.

If you have any queries on this article or the new duty, please get in touch with the author or your usual Womble Bond Dickinson contact.