Wake-up call: Who is responsible for harassment?

When bringing a third party into your business, such as a speaker, you must keep your staff's interest front of mind, says Helen Goss

The problem
A hotel arranges an event around a speech from a rugby legend on his career and colourful private life. He has a reputation for risqué comments, but can be very amusing and is certain to sell tickets. The hotel's business development team have been told to attend to push the hotel's conference facilities to the local business community.

The speaker makes sexist jokes about women in the audience, as well as racist remarks about the national team. Some of the hotel's event managers also make sexist comments about the waitresses.

The law
The Equality Act seeks to stop discrimination or harassment based on sex, race and other protected characteristics.

As a work event for hotel staff, this is likely to be "in the course of employment". This means that employees such as the waitresses can hold the hotel vicariously liable for the event managers' discriminatory comments in any claims they bring. The employer could even be liable for harassment for the comments of the guest speaker if the employer contributed to an already hostile environment. In this case, this might happen if the speaker was encouraged to make inappropriate jokes by the employer. Individuals who make sexist or discriminatory comments are at risk of criminal or civil claims against them personally under the Protection from Harassment Act. The employer may also be vicariously liable for the harassment by employees in the course of their employment.

Expert advice
To avoid this situation, it is important for the hotel to carefully choose which speaker to book and to clearly set boundaries with them as to what is acceptable and what is not. While an employer might not be liable for harassment based on a third party's comments alone, there is uncertainty here from recent cases.

A defence for an employer when their employees harass colleagues is that the employer has taken all reasonable steps to avoid the harassment happening. An employer should have clear policies on equal opportunities and anti-bullying, but it is vital to ensure that these are brought to the employees' attention and that you explain these policies as part of an induction. An employer should also regularly train employees on these issues.

Employees might ask not to attend this event, citing the speaker's reputation. Normally, refusal to perform an obligation of the job could result in disciplinary action against the employees. However, in this case, the employer should listen to concerns. An employee might argue that the requirement that they attend an event with a sexist or racist speaker breaches their contract of employment and enables them to resign and claim constructive dismissal and discrimination.

To-do checklist

• Advise the speaker they must protect the venue's reputation by refraining from any discriminatory comments.
• Have restrictions on what the speaker can say. If at all possible, review speaking notes or the intentions of the speaker in a pre-meeting.
• Designate and authorise a person to step in with a pre-arranged intervention if the behaviour of the speaker, guests or employees gets out of hand.
• Have a well-publicised grievance procedure available and treat complaints seriously.
• Adopt consistent treatment in the approach to staff members accused of harassment.
• Listen to staff if they express concerns about a particular speaker.
• Warn staff (and speakers!) to be aware of alcohol consumption and emphasise intolerance of drunken behaviour.

Beware
Damages for discrimination cases are uncapped and employers risk multiple claims from offended employees or attendees. Damages will take into account injury to feelings as well as economic loss, and could run into six figures in an extreme case.

Attendees could use social media to discuss any offence. The speaker is likely to be a high-profile individual and so any bad publicity will spread quickly and will attract media attention. This could affect customer confidence, and potentially encourage claims to be made.

Helen Goss is a partner at Boyes Turner LLP hgoss@boyesturner.com