Hospitality businesses are in an uphill battle to recover, experiencing chronic staff shortages as a result of the pandemic. And news that hospitality staff have been subjected to rising cases of abuse from customers is concerning.
Kate Nicholls, chief executive of UKHospitality, said: "After such a difficult 18 months, this behaviour is shocking and completely unacceptable…I urge all customers to treat hospitality staff with respect and remind them that just like any other person, staff are trying their best to navigate the pandemic."
Clearly, being abused by customers can increase feelings of stress, isolation and anxiety, which are factors for mental ill health. With hospitality staff already at breaking point given the chaotic first summer season since the government lifted restrictions, businesses are having to confront employee retention issues and stress-related absences at the worst possible time. In addition, they potentially risk exposure to legal claims should they fail to deal promptly with complaints of customer abuse and/or fail to properly discharge their health and safety obligations towards their staff.
The legal framework around customer harassment is not as clear as hospitality employers might like, and protection depends on who the preparator is. If an employee is bullied or harassed by a colleague in the course of employment, they may have claims under discrimination legislation, the Protection from Harassment Act 1997, their contract of employment, unfair dismissal legislation and/or in negligence.
Encourage staff to report harassment by customers, support those who report harassment and take appropriate action
However, where the bullying or harassment is done to the employee by a third party, eg, a customer, until recently (and outside of the criminal law) there is little civil protection. However, this does not absolve employers from needing to take steps to protect employees from inappropriate behaviour from customers. Such issues can be hard to handle given that "the customer is always right".
In light of the rise of the #MeToo movement and this gap in the law, the government has announced that it will reintroduce previously repealed workplace protections against harassment by third parties. It is not yet clear precisely what this protection will look like, but it appears that it will include the existing vicarious liability "all reasonable steps" employer defence.
With changes to the legal landscape on the horizon, there are a number of things employers should be doing now, to discharge health and safety duties and to help demonstrate that they have taken all reasonable steps to prevent harassment, including:
● Make sure the fundamentals are in place. Prepare clear and up-to-date written policies on anti-harassment and bullying. Have a clear public notice advising third parties that harassment of staff is unlawful and will not be tolerated.
● Give regular training on policies and procedures. Recent case law has emphasised the need for refreshing these regularly.
● Conduct spot staff surveys. Take the temperature on how they are feeling and measure whether the organisation's approach to bullying and harassment is working.
● Encourage staff to report harassment by customers, support those who report harassment and take appropriate action.
● Ensure managers are equipped with the skills to spot the signs of burnout or mental health issues, and to signpost effectively to appropriate forms of support.
Now more than ever, showing a commitment to staff support and wellbeing may pay dividends as hospitality business prepare to weather ongoing staff shortages.
Daniel Stander is an employment lawyer and certified mental health first-aider at Vedder Price LLP
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