Employees can now sue employers for not protecting them from harassment by a third party. So is it time to crack down on flirting?
It's getting easier for retail workers to sue their employers. Changes to the Sex Discrimination Act came into force on 6 April 2008, and it's no longer only colleagues you have to watch out for, you now need to protect employees from harassment by customers, or you could face a claim in an employment tribunal and an unlimited fine.
And the changes don't stop there. Employers now have a legal duty to intervene if a regular customer insists on making comments that staff object to, as they are obliged to take steps to protect employees who have been harassed by a third party on three or more occasions. The amendments have also got rid of the 'causal link' between harassment and the sex of the person alleging harassment. So if somebody's dignity is violated without them actually being harassed themselves, they too will be able to claim (for example, a man may object to a sexist joke which is demeaning to women, and bring a claim).
Many media commentators have bemoaned the end of a culture of fearlessly flirting with barmaids or engageing freely in banter with retail workers across the till.
There will always be people who are more litigious than others, and it is inevitable that retailers will see more claims being brought. However, the amendment is likely to help those who deal with harassment on a daily basis - not harmless flirting, but demeaning and inappropriate comments.
The 'reasonably practicable' steps you must take to protect your workers won't cost a fortune and should make stores a more pleasant place to work for everyone.
If one customer is particularly troublesome, for example, it may be necessary to ask another worker to deal with them or, ultimately, to ban them. It's also worth remembering that the perpetrator may not be aware that they are causing offence - if you suspect this to be the case, a manager or other senior employee could take the customer aside and explain that their behaviour is unacceptable. If the customer seems intent on offending the employee despite all your efforts, you are, of course, well within your rights to contact the police.
There is no need for retailers to lose customers over the changes - in fact, the main point of the legislation is to protect employees from each other, and the case law is far more likely to revolve around colleague harassment.
This can actually be much more difficult to deal with, particularly if the offender remains at the workplace or if a complaint isn't upheld. Such situations need to be dealt with sensitively, and it can take months of careful mediation to repair damaged relationships.
The key thing you can do to help protect your workers is to encourage a culture of dignity and respect in the workplace and make sure everyone knows they will have your support if they experience harassment or discrimination.
There is no reason to panic about the change in the law. Responsible retailers will already have systems in place to nip harassment in the bud - the amendments simply offer additional legal protection to your employees. It's perfectly reasonable that the customer's 'right' to offend retail workers should be revoked. Nobody should have to suffer because of their gender, and employers should take responsibility for protecting their welfare and dignity.n
Judith Watson, head of employment at Cobbetts LLP