Skinny latte with an extra shot of harassment, please26 Nov 2015
An amorous Starbucks barista has hit the headlines causing a media frenzy after leaving a message on a customer’s coffee cup, partly crossing out a safety warning to leave the message: “Careful, you’re extremely hot.”
Opinion has been divided between those who think that the employee was charmingly funny and those who think that it was creepy and unnerving. Whatever your personal view, this is a story which serves to demonstrate some practical points about employment law and why it frustrates so many employers.
Walking a fine line
Judging from the social media commentary, some people receiving a flirtatious message on a coffee cup would be appalled. They would find it intimidating and would question the motives of the employee. Some have said that they would complain to the manager. Some articles in the press have described the barista’s actions as taking the practice of writing on cups “too far” and suggest that it might amount to harassment. By contrast, there are those who have taken to Facebook to applaud the “smooth” coffee shop worker. Posts speak of people who would keep the cup as a trophy to cheer them up from time to time.
The people who think that this is no big deal cannot understand the people who would be offended. The people who find it creepy think those who are relaxed about it have missed the dangers of this kind of behaviour. A single act in the workplace has generated strong opposing feelings on either side of the divide. The problem for employers is that strong feelings can result.
What exactly is harassment?
Harassment, defined under the Equality Act 2010, is unwanted conduct related to a person’s relevant protected characteristic (in this case their gender or sexual orientation) that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. Whether or not the barista’s actions amounted to harassment would depend on how the customer perceived his conduct, the surrounding circumstances and whether it would be reasonable for the barista’s actions to have that effect on the customer.
In law, there is no need for the “victim” to have already made it clear that the “harasser’s” conduct is unwanted in order for it to constitute harassment. A one-off incident can constitute harassment and some conduct can be presumed to be unwanted unless proved otherwise. “Unwelcome sexual advances” is given as an example of harassment in the Bullying and Harassment ACAS Guide for Employees.
So how do you know if your advances are unwelcome?
The cases already tell us that there is no right for potential harassers to “test the water” to establish if their conduct is serious enough to reasonably be considered as harassment. In the employment context, the fact that an employee has put up with certain conduct for years or even joined in does not necessarily mean that the conduct is not “unwanted”.
As an employer, could I be liable for my staff’s behaviour?
An employer could be (and usually is) held liable for the employee’s discrimination or harassment of another. Employers can defend a claim if they can show that they have taken all reasonable steps to prevent the discrimination or harassment. Usually, that will at least involve putting in place the correct policies and procedures and training employees about equality, discrimination and harassment issues.
I doubt whether the barista will have given much thought to the Equality Act 2010 or ACAS guidance when he was flirting with a customer. Like many employees who are trying to be funny or flirtatious, he may have thought that the only risk he was taking was that the recipient would give him a knock back. The lesson for employers and employees is another one of caution – “Careful, if someone thinks you’re creepy, you could get your and your employer’s fingers burnt”.
For advice on any of the issues discussed in this bulletin, or to arrange training for your staff on issues such as harrassment, please contact us or call Kuits Employment team on 0161 838 7806.