Can you be held legally responsible for the actions of your customers?

A quirk of the new Equality Act will be that staff could take their employer to Tribunal for discrimination if third parties (i.e. customers) behave contrary to the provisions.  An employer must take sufficient precautions to protect staff from abuse, but it appears that an employee will be able to take action after three incidents, which could involve three different offenders. This provision has existed since 2008 in Sex Discrimination legislation, without the “three strikes” element, but there has been little use of it in the Tribunals.

It is a concern to employers and does require some thought. How can you control the actions of the general public in, for example, a pub?  Distressed patients and their families in hospitals are notoriously volatile; will a warning sign be enough to prevent problems?

Each employer needs to consider what reasonable steps it can take to protect itself from this legislation. Simple activities like putting up signs in public places (about not tolerating inappropriate behaviour or abuse, similar to those on the London Underground and Council offices, would be appropriate), training staff and managers, updating policies and being prepared to stop serving the protagonists are all reasonable steps. The important thing is to help staff recognise what they can also do to prevent such behaviour, so up skilling them in dealing with difficult people / customers would be sensible.

Immediate actions you should take

The main concern that I have about this element of the legislation is the way that some organisations are using it to “scare” businesses and give them greater concern than is necessary about the scope of the new Act. The normal boundaries of reasonableness, justifiable outcomes and proportionate all remain within this piece of legislation. It is very sensible for each employer to become aware of the detail of this Act but to also put it in context and see the benefits of bringing together so much disparate legislation.

Of course any good employer will already be doing what they can to protect their staff, but will it stand up in court? The steps we advise all employers to take in the next few weeks are:

• Update your Equal Opportunities / Diversity policies
• Consider training your managers in the detail of the Equality Act and provide a briefing for staff
• Think about putting up signs regarding third party behaviour
• Update your recruitment practices to avoid references to health and update any pre employment health questionnaire to ensure it fits within the Act
• Remove any pay secrecy clauses in contracts or pay review letters

 Unfortunately we will then have to wait for the case law to determine how the Equality Act will be interpreted by the Tribunals. The best you can do is put in preventative measures to avoid being the employer that sets the precedent.