THE IDEA that practices can be legally liable for the delinquent discriminatory acts of their staff is a difficult one to grasp. The thought that medical and dental practices could be liable for acts of harassment by their patients and visitors is an even more scary prospect. But that is a consequence of the 2010 Equality Act, which came into effect on 1 October this year.
So-called ‘third party’ harassment originally arose in legal cases heard over the last few years where staff, subjected to unwelcome attention or discriminatory comments from performers (including Bernard Manning) at events where they were working, pursued claims against their employers for failing to protect them from these harassers. These cases produced a variety of different outcomes for the employers concerned – so the Government decided to clarify employers’ liability in these situations in the Equality Act. The Act now makes it clear that employers will be liable for acts of harassment by third parties when the unwelcome treatment of their staff is related to gender, race, disability, sexual orientation, religion or belief, age or gender reassignment.
Once an employee reports two instances of such harassment (either by the same or two different harassers), the practice will be liable for a third incident if they have failed to take reasonable steps to prevent acts of harassment against the staff member taking place.
In order to use this ‘reasonable steps’ defence, the practice will need to demonstrate, for example, that it has a written policy on dignity at work which includes reference to harassment by third parties and which makes it clear to staff that they need not put up with such behaviour from patients, contractors and visitors. It may be appropriate to tell staff that they will not be disciplined for refusing to deal with an abusive patient and encourage them to report any incidents which give them cause for concern to the practice manager or a partner.
However, it is not sufficient for an employer just to have a policy on these matters. The policy must be communicated to staff and, arguably, in some way to patients and other visitors – for example, through notices explaining that any harassment of staff will be taken very seriously. Staff should be given training about how to deal with incidents of harassment and discrimination by third parties and how the reporting and complaints procedure operates in the practice.
Ideally, the partnership should have a policy for how delinquent patients should be dealt with, how any warning system should operate and what to do about unrepentant and persistent offenders. Once such a policy is agreed upon it should be operated consistently and promptly by the practice.
It is, of course, possible that individual staff members will not complain formally (or at all) to practice managers or partners. Nevertheless, it will be both good practice and sensible, from a prevention point of view, for managers to be vigilant in looking out for incidents of inappropriate behaviour and to step in to protect staff and make it clear to harassers that their behaviour is unacceptable. Some staff may be particularly vulnerable to acts of sexist, racist, homophobic or religious harassment and it will make sense for managers to look out for signs of embarrassment or stress in these staff and to encourage these employees to talk to their manager if they are uncomfortable about patients’ behaviour.
The stakes are high for practices here because, apart from unwelcome publicity arising from complaints to an employment tribunal, there is no financial cap on compensation that might be awarded in the event of the practice being unable to extract itself from vicarious liability for third party harassment and being found guilty of discrimination.
So if the customer was ever ‘right’, they cannot now be regarded as such if their behaviour puts them outside the law. Taking prompt steps now to produce appropriate up-to-date policies and putting in place processes to train staff in these matters and to encourage them to report incidents formally will pay dividends for medical and dental practices in the event that they are ever threatened with legal action by staff.
Practices can get guidance from the MDDUS HR Advice service on these new liabilities and how to deal with them.
Ian Watson is training services manager at Law At Work
Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit www.lawatwork.co.uk