Protecting staff from abusive customers

Catriona Aldridge and Max Wiktorsson outline the importance of employers ensuring they have adequate protection in place against harassment by third parties.

The ever-increasing focus on workforce wellbeing and ethical treatment of staff means that, more than ever before, employers need to take seriously the risks posed to staff from abuse in the workplace. As well as potential legal liability, failure to protect staff from abuse by customers or clients carries commercial and reputational risks. It affects productivity and impacts an employer’s ability to attract and retain talent.

Under health and safety legislation, an employer has a statutory duty to protect staff from harm. Employers also have a common law duty of care to their workforce. Broadly, this means that employers must take reasonable steps to ensure staff are kept safe from foreseeable risk. 

As part of discharging these duties, an employer must identify and assess potential threats to staff by undertaking a risk assessment, and then seek to eliminate (or at least control) those risks. This includes considering the risks from, and impact of, physical or verbal abuse from third parties such as customers. While the risk of physical harm from customers or service users might be greater in certain working environments, for example in healthcare and hospitality settings, risks arising from verbal abuse and the potential impact on mental wellbeing exist in a much wider range of workplaces including professional services. 

An obvious fall-out for employers that fail to adequately manage abusive interactions between staff and customers is increased sickness absence levels. Beyond that, employees who suffer customer abuse may resign and claim constructive unfair dismissal provided they have two years’ continuous employment and are prepared to take the step of leaving their job. A successful claim would require them to show that enduring the abuse, and the employer’s failure to protect them from it, amounted to a fundamental breach of contract entitling them to regard themselves as dismissed.

In respect of abuse by a customer relating to a protected characteristic under the Equality Act 2010, such as sex, race, or sexual orientation, since the repeal of specific provisions of the Act that expressly related to an employer’s liability for third-party harassment, it is only in very limited cases that a worker could raise a claim against their employer for discrimination or harassment. 

Critics contend that this makes it much harder for workers to hold employers accountable for discrimination or harassment by third parties. This is subject to change. In its July 2021 response to the consultation on sexual harassment in the workplace, the government proposed the introduction of specific workplace protections against third-party harassment. Any new provisions will be subject to consultation, and the timetable for implementing the proposed protection is unknown.  

For employers, much of the impetus to eliminate abuse from third parties in the workplace is a moral and business one. It is a particularly pertinent issue for employers who want to create a sustainable workforce and who are prioritising social matters as part of their ESG (environmental, social and governance) agendas. 

In terms of practical steps to help ensure their workplace is a ‘a good place to work’, as well as reducing legal risk employers should ensure anti-harassment and bullying policies are actively implemented and supported by up-to-date workforce training. Staff should be trained in how to respond to and de-escalate abusive or aggressive behaviour from customers. They should also be made aware of employee support systems, including any counselling provision and complaints procedures. Training of line managers in identifying, responding to, and addressing abuse of staff by customers is key.

This article was first appeared in People Management, April 2022.