Third party harassment and the responsibilities on employers in the hotel sector

Like most jobs in the service sector, hotel staff directly engage with customers on a day-to-day basis, whether that be to help with check-ins, room service or cleaning etc. While in the main the majority of customers will be respectful of staff, there are unfortunately instances where hotel employees are subjected to harassment from guests, which would fall under the umbrella of ‘third party harassment’.

Since 2013, an employer cannot be held liable for the harassment of staff by a third party. One of the reasons for this was that the provisions relating to third party harassment were confusing as it was a requirement that the employer had knowledge of two previous occasions of harassment before they could be liable. It was known as the ‘three strikes’ rule.

Ten years on and The Worker Protection (Amendment of Equality Act 2010) Bill 2023 appeared to be about to reintroduce employer liability for the harassment of their employees by third parties, but this time without the ‘three strikes’ condition.

However, the proposed change in the law would have meant under the Equality Act 2010 an employer was to be treated as harassing an employee in circumstances where an employee is harassed in the course of their employment by third parties, such as customers or clients, over whom the employer does not have direct control, unless it could be shown that all reasonable steps had been taken to prevent that harassment.

Under the proposed changes, the employer would be liable for the actions of a ‘third party’. That could clearly be a hotel resident, but it could be wider. It could be a customer in the bar, an entertainer booked to appear at the hotel, a maintenance contractor, a delivery driver, in fact anyone with whom the employee comes into contact in the course of their employment.

The legal definition of a third party in the Bill is simply a “person other than the employer or a fellow employee” which is a wide scope for liability in respect of anyone in a public facing role.

That is a factor that has no doubt influenced the surprising decision in the House of Lords to now drop these proposals relating to third party harassment.

Harassment: a duty to prevent

The second major change in the Bill was the proposal that an employer should be under a duty to prevent sexual harassment of employees. This proactive duty would put the onus on employers to be able to show all reasonable steps had been taken to prevent sexual harassment before it had happened.

Again, this was recognised as creating quite a difficult task for employers as case law has already shown how tricky it is to establish the statutory defence that ‘all’ reasonable steps have been taken in any current harassment claim.

It has been made clear in caselaw that while there might be policies in place that express a zero-tolerance approach to harassment and training of employees in relation to these policies, it will still not be regarded that the employer has taken all reasonable steps.

The high bar set by the Employment Tribunal for establishing the defence involves a two-stage assessment. Firstly, whether the employer took reasonable steps to prevent discrimination or harassment occurring, and then secondly considering whether there were other reasonable steps that it could have taken. It has been at this second stage that most defences have failed as there is in practice countless other things which may have been done.

During the House of Lords debates relating to the Bill and taking into account the difficulties employers would face, the decision has been taken to remove the requirement for all reasonable steps to be shown to have been taken in respect of the proactive duty to prevent sexual harassment in the workplace.

The revised wording in the Bill will now require that employers show that reasonable steps have been taken to prevent harassment.