Autumn 2024 presents new challenges for employers in the hospitality industry. On 1 October 2024, the new tipping Code of Practice bites, and from 26 October 2024 a new proactive duty on employers to prevent sexual harassment in workplaces comes into force.
The new proactive duty to prevent sexual harassment in the workplace
For those within the hospitality and leisure sector, this new duty could have far-ranging implications. It requires employers to take reasonable steps to prevent sexual harassment in the course of their employment. If a claim for harassment is upheld which involves some sort of sexual harassment (even if that isn’t the main focus of the claim), failure to comply with the new duty means that compensation can be uplifted by up to 25%.
This means that employers need to take action now to protect themselves in the future.
It’s an unfortunate truth that employees working in hospitality are more likely than most to face sexual harassment, particularly at the hands of boisterous punters. The Equality and Human Rights Commission (EHRC) draft guidance states that the new duty applies to preventing harassment committed by third parties, even though an employer can only control that to a limited extent.
This means that employers need to be considering or taking action now, looking to prevent sexual harassment whether at the hands of fellow employees or third parties such as customers:
- implementing risk assessments to ensure safeguards are in place to prevent sexual harassment at work, particularly considering the presence of alcohol, any customer-facing duties and whether risks are increased at certain “cultural moments”, for example a cup final or similar
- reviewing and refreshing staff policies applicable to all workers, including anti-harassment policies to reflect the new duty and reiterate reporting obligations, consulting with workers about those policies
- rolling out training to reflect the changes which are tailored to risk, their current working practices and arrangements e.g. remote/hybrid working or the use of social media and electronic communications.
An interesting consideration is whether the practice of tipping in itself fosters an environment where sexual harassment is tolerated in circumstances where it otherwise would not be. For example, customers tend to tip more when serving staff appear positive, whereas a server could expect a poor tip if they (or their employer) has called out a customer for poor behaviour such as sexual harassment.
The new tipping regime
The Employment (Allocation of Tips) Act 2023 itself comes into force on 1 October 2024, meaning that employers will have a legal obligation to ensure that tips are allocated fairly between workers and then paid to the relevant worker. Employers will need to ensure that those more at risk of sexual harassment are not penalised in the allocation of tips as a result of any steps taken by the employer in line with the new duty. We have considered the detail of the new regime in our latest S&B People Podcast ,which is available here. Also, read-up on how to prepare for the new tips regime here.
What to do now
There is a lot for hospitality employers to be getting to grips with. Please do get in touch if our experts can assist you to navigate these new challenges.
Rebecca Berry