Without prejudice?
Just over a year ago an Employment Appeal Tribunal (EAT) stunned the world of hospitality and leisure by insisting that a hotel was legally responsible for racist remarks made by guests to its staff. The case, in December 1996, became infamous as the "Bernard Manning case".
Other cases of racial discrimination within the hospitality industry have also been to court in recent years, attracting less publicity. More obvious cases involving refusing to serve someone of African-Caribbean origin or discriminating in employment.
"Hospitality hasn't got a very good record over racial discrimination," says a spokesperson for the Commission for Racial Equality (CRE).
However, the Bernard Manning case was different, and it had extensive repercussions for the industry because of the source of the abuse.
It began when two women working at De Vere's Pennine Hotel in Derby in November 1994 were racially abused by guests at a banquet organised by the Round Table, where Manning was the entertainer. He had made remarks to them as they worked, the tone of which was continued by two guests after the show. The women took their case to an industrial tribunal. Initially, the case was thrown out. But an appeal to the EAT was allowed.
"The EAT found that an employer subjects an employee to racial harassment if he or she causes or permits it to happen," explains Mary Clarke, employment partner with Dibb Lupton Alsop, one of Britain's largest employment law practices. "The hotel had been in a position to control whether Bernard Manning appeared or not."
The ruling puts hotels and restaurants on the front line for racial harassment claims from staff who are abused by customers. Its conclusion terrified many businesses and aroused the fury of others. Many employers had policies in place to avoid racism in recruitment and promotion and also to limit racism between employees. But how could hotels and restaurants stop their paying guests from being racist?
"It puts a heavy burden on employers," says Martin Couchman, deputy chief executive of the British Hospitality Association.
At the time of the case, CRE chairman Herman Ouseley said of the decision: "The EAT has clarified the responsibilities of the employer under the Race Relations Act. Where an employer can reasonably be expected to protect their employees from racial harassment and abuse then they have a duty to do so."
Staff guidelines
He added: "In future we hope that those responsible for managing places of entertainment will take care to ensure that their staff are treated properly by entertainers and by guests at any functions on their premises."
Fourteen months on and the industry has taken on board the message. There are staff guidelines on how to avoid, or deal with, racism from customers. De Vere's parent, Greenalls, formulated its own, and these have become the benchmark for how employers should deal with risky situations. The British Hospitality Association has adopted Greenalls' policy for its own guidance to members.
But what has the case really meant for hospitality? One response is to avoid placing staff who may be subject to racial remarks in vulnerable positions. But in the Manning case this was merely clearing tables during a banquet. The idea of stopping people from diverse ethnic groups from being waiting staff or receptionists is ludicrous. It is also probably illegal.
"It is not a satisfactory response," says Clarke. "It would be discrimination."
Greenalls has taken another approach. It puts the onus on organisers - when they book the venue, they must sign a contract accepting all responsibility for their guests.
"Greenalls makes it clear that organisers have a responsibility to everyone involved with events and that they have an obligation to make sure entertainers behave reasonably," says a spokesman for the group. "Greenalls does not tolerate any form of discrimination."
The idea is to stop an event where racial harassment could occur.
Having a quiet word with the event organiser at an early stage can often contain the situation before it gets out of hand, advises employment specialist Annabel Kaye, managing director of Irenicon. But she warns managers to review the terms of trade.
"Make sure you have the right to cancel or terminate an event where racial harassment is likely to arise, or bring it to a premature finish if unexpected harassment arises."
The Bernard Manning case is just one side of racial discrimination, where the abuse comes from a guest. How does the rest of the industry fare in its behaviour towards the various ethnic groups involved in the trade? Racial discrimination is a difficult thing to prove, yet a quick look at the CRE files can immediately throw up three other recent examples of successful litigation under the terms of the Race Relations Act 1976: the case of a man refused service in a club, a woman passed over in favour of white candidates for a waiting job, and another discriminated against while employed and finally sacked.
All these cases resulted in embarrassing conclusions for the companies involved and hefty compensation bills.
"Damages for claims of racial and sexual harassment are unlimited," warns Clarke.
The CRE believes the majority of cases go unreported. Even though claimants are not restricted to the two-year rule with regard to employment, the casual nature of the industry means people more often move on to another job than take action in court. Because it is a service industry, people working in hospitality also tend to bite their tongues when unpleasant incidents occur. It is deep within "the customer is always right" culture. How many waiting staff from family-owned Chinese or Indian restaurants would go to court over racist remarks made by clients?
But for larger employers the likelihood of action taken by staff is growing. Publicity from incidents like the Bernard Manning case increases staff confidence not to tolerate abuse. And why should they? The ruling by the EAT in 1996 makes it quite clear that the courts will not tolerate it and that it is up to the employers to stamp it out by restricting what can and cannot happen on their premises.
