With harassment firmly in the public eye and staff empowered to complain, it is important for retailers to have solid policies to create a safe work environment in their stores.
by Amanda Jones
Amanda Jones is a partner in the employment team at Dentons.
LAST year’s string of sexual harassment claims and the subsequent ‘MeToo’ campaign means that employees are now more willing to call out unacceptable treatment, with consequences for employers, as they attempt to provide a harassment-free working environment. It’s worth looking at some of the specific challenges facing the retail sector.
What forms of discrimination at work does harassment cover?
Harassment is defined as unwanted conduct, which violates someone’s dignity or creates a hostile or degrading environment. It covers treatment, which is related to any of the protected characteristics, such as sexual orientation, religious belief, race, sex, age or disability. There are specific definitions in relation to sexual harassment and gender reassignment. The definition covers comments and misguided attempts at jokes, as well as physical contact.
It is also important to note that an employer can be liable outside the workplace, if there is a close enough link to work. Office parties or events may fall into this category.
Therefore, fair and reasonable treatment of all staff is essential. It is good practice to have clear rules and policies that apply to all employees, whether they are family members or not, and to apply those rules to staff fairly. The same applies in relation to training and promotion opportunities.
To what extent are employers responsible for protecting staff from harassment by other employees and customers?
Employers are no longer directly liable for the actions of third parties in relation to harassment on the basis of a protected characteristic. However, they are liable for actions of their employees towards each other or if they fail to address issues of conduct by third parties.
An employee who has been harassed – for instance, where they feel that inappropriate jokes or language has been used in their presence – can hold the employer liable for the hurt feelings caused. If such behaviour persists whether by employees or third parties, and nothing is done about it, then an employee could resign and seek to hold the employer liable for the losses they incur. An employer can defend claims relating to the conduct of employees towards each other if it demonstrates that reasonable steps were taken to prevent such behaviour. But if an employer has failed to take steps to instil a culture, which does not tolerate harassment, then it will be liable for claims, even if management disapproves of the conduct and employees who are found to have behaved badly are subsequently dismissed.
What practical steps can retailers take to protect staff and mitigate legal risks?
Employers need to ensure that harassment policies are not just a box-ticking exercise, with regular training for staff and managers setting out the standards of conduct expected from employees. With many retailers seeing a high turnover of staff during peak seasons, it is important to ensure that all new staff are trained to the appropriate level and properly understand the rules and policies of the company.
At social events, it is important to remind staff that those standards of conduct still apply. Alcohol can make people act in ways which might very well offend their colleagues, and it can be a difficult balance for an employer to ensure that this does not happen, while allowing staff to enjoy themselves in a more informal environment.
Despite the lack of direct liability for customers’ behaviour, it is also wise to introduce signage in customer-facing areas setting out the policy for customers and making clear that the company will not tolerate harassment of staff. Customers may not know or indeed care whether they offend staff who serve them, and employers certainly need to consider what steps staff ought to take when they feel that they are being harassed, whether verbally or physically. Policies allowing employees to complain about treatment should also be introduced and made widely available. Many larger employers are now introducing anonymous help lines where staff can give information about inappropriate conduct without the fear of repercussions.
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