Sexual harassment in the workplace is a serious issue that employers cannot afford to overlook. One aspect of this issue that often raises questions is third-party sexual harassment—when harassment is perpetrated by someone who isn’t an employee, such as a customer, client, contractor, or supplier. Should employers investigate such incidents? While the answer may vary, understanding the key considerations can guide employers in making the right decision.
What is third-party sexual harassment?
Third-party sexual harassment occurs when an employee is subjected to unwanted behaviour of a sexual nature by an individual who is not part of their organisation. This behaviour can range from inappropriate comments to physical harassment, and it can create a hostile and distressing working environment.
For example:
- A bartender faces lewd comments from a regular customer.
- A receptionist is subjected to inappropriate physical contact by a supplier during a delivery.
- A retail worker is targeted with sexual advances by a client while assisting them.
While the harasser isn’t employed by the organisation, the impact on the victim and the workplace environment can be significant. This raises the question: what responsibility does an employer have to address and investigate such incidents?
Key considerations before investigating
When deciding whether to investigate third-party sexual harassment claims, employers should weigh the following factors carefully:
1. Legal obligations and the Worker Protection Act
The Worker Protection (Amendment of Equality Act 2010) Bill, introduces a proactive duty on employers to prevent sexual harassment. It also revives the liability of employers for third-party harassment under certain circumstances. This means that employers could face legal consequences if they fail to take reasonable steps to prevent or address harassment.
Understanding these obligations is crucial when assessing whether to investigate, as failing to act could lead to reputational and legal risks.
2. The impact on the employee
Employers should consider the impact on the affected employee. Have they reported feeling unsafe, stressed, or unable to perform their duties as a result of the harassment? Even if the perpetrator isn’t part of the organisation, the employer has a duty of care towards their staff. Investigating could help ensure the workplace remains a safe and supportive environment.
3. Workplace culture and morale
Ignoring allegations of third-party sexual harassment could harm workplace culture and morale. Other employees might feel that their concerns won’t be taken seriously, leading to decreased trust and productivity. Conversely, demonstrating a willingness to investigate sends a strong message that the organisation prioritises the well-being of its team.
4. Evidence and practicality
Gathering evidence in cases of third-party harassment can be challenging, especially if the accused individual is not directly under the employer’s control. Employers should consider whether sufficient evidence is available to conduct a meaningful investigation. If the perpetrator is a repeat visitor or client, the employer might have more leverage to address the issue.
5. Potential outcomes and next steps
What action can realistically be taken if the investigation finds that harassment occurred? Options might include barring a customer from the premises, revising contracts with suppliers, or implementing policies that minimise future risk. Employers should consider these potential outcomes when deciding whether an investigation is worthwhile.
When in doubt, seek legal advice
Navigating third-party sexual harassment can be complex, particularly given the evolving legal landscape. Employers unsure of their responsibilities or the best course of action should seek advice from an employment lawyer. This ensures compliance with UK laws and helps employers make informed decisions tailored to their circumstances.
A word of caution
Employers should approach reports of third-party sexual harassment with care. If you feel an incident warrants investigation, it likely does. Ignoring complaints can have serious consequences for the affected employee, the workplace culture, and the organisation’s reputation.
By taking the time to consider the key factors outlined above and seeking legal guidance where needed, employers can make well-informed decisions that protect their employees and their business.
At Tell Jane, we can support your organisation in conducting fair and impartial workplace investigations through training in-house investigations or carrying out investigations on your behalf.
Email us today at hello@telljane.co.uk to find out more.
