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Sexual harassment in the hospitality industry: how to protect staff and avoid liability

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In the wake of #MeToo, the prevalence of sexual harassment has been laid bare, from boardrooms down to shop floors and from multinational listed companies to charities and independents. This movement has exposed the fact that sexual harassment in the workplace is pervasive and affects all sectors. However, the hospitality industry has a particularly bad reputation. One of the flashpoints of the #MeToo movement was the men-only President’s Club dinner last year, where hostesses spoke out about being groped, propositioned and degraded by attendees. Only days later a survey was published by the Unite union finding that 89% of workers in the hospitality industry had experienced one or more incidents of sexual harassment in their working life.

In this context, business owners in the hospitality industry have a clear responsibility to take steps to protect their staff and try to build a workplace culture where harassment is not tolerated. Addressing this is not only likely to foster a more cohesive working environment and reduce staff turnover, but is also crucial to avoid liability for sexual harassment claims (compensation is uncapped) and the reputational fall out from resulting bad publicity.   

What is sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. Examples of sexual harassment can include unwanted touching, lewd comments, the displaying of pornographic material in the workplace, ‘banter’, sexual gestures, propositioning, and sending suggestive comments or images via text/email/WhatsApp.

Who is liable?

Employees are individually liable for acts of sexual harassment. However if their conduct is carried out in the course of their employment then their employer shares the liability (unless it can establish a defence – see below). So, for example, if your hotel manager inappropriately touches your receptionist in your hotel lobby, or even at your work Christmas party, then the hotel will usually be liable (along with the hotel manager) unless it can establish a defence.  

In some circumstances, the employer can also be liable in relation to acts committed by third parties. So, for example, if a rowdy customer makes lewd sexual comments to a waitress, the restaurant can also be on the hook if it does not take steps to prevent such conduct. In practice, regardless of whether an employee or a guest has committed the sexual harassment, the employer is often the target of litigation given that will usually be more able to afford to pay compensation.

What action to take

It is a defence for an employer to show that it took all reasonable steps to prevent the sexual harassment from occurring. As a minimum, whether your business is a café, restaurant, bar, or hotel, you should do the following to pre-emptively try and establish the defence:

  • Policies – make sure you have a comprehensive Equal Opportunities Policy and Anti-Bullying and Harassment Policy in place, which are reviewed and updated at regular intervals so that they remain appropriate and relevant.
  • Awareness – Employees should be made aware of these policies and asked to read them. However, in recognition of the fact that some employees will never read your policies, it is also a good idea to summarise the headline points in your communication to them i.e. that harassment (whether sexual or any other form) is unacceptable and will lead to disciplinary action, which may include dismissal. In relation to harassment by third parties, you may consider putting up signs to notify customers that harassment or abuse of your staff is not tolerated and that in such circumstances you reserve the right to have them removed from the premises (think of the TFL signs on the Tube or the NHS signs you often see in doctors’ surgeries).
  • Training – At a minimum, managers, supervisors and other senior members of staff should be trained so that they can learn to identify instances of sexual harassment and to tackle them appropriately. This requires an understanding of not only equal opportunities and what constitutes sexual harassment, but also of how to properly follow your disciplinary and grievance procedures. Ideally all staff should be trained on your Equal Opportunities and Anti-Bullying and Harassment Policies.
  • Action – If any employee raises a complaint of sexual harassment, or if you become aware of an incident which could constitute sexual harassment, your business needs to respond quickly and robustly. Take grievances (and also rumours) of sexual harassment seriously and ensure that they are investigated and a disciplinary procedure commenced where appropriate.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.