When the Customer Becomes the Problem: Why Hospitality Employers Need to Act Before 30 October

A customer walks into a pub, has several drinks and begins making inappropriate comments towards a member of staff. The employee is uncomfortable, but the customer is a regular, well known to the management and someone who spends a considerable amount of money at the establishment. The manager gives him a warning, tells the employee to ignore him and considers the matter closed. It is a situation many hospitality employers will recognise, and one which has historically been dismissed as an unfortunate consequence of working with the public. From 30 October 2026, however, that approach carries a significantly greater legal risk.

The Employment Rights Act 2025 introduces an obligation on employers not to permit harassment of employees by third parties, including customers, guests, clients and other members of the public. The legislation also strengthens the existing preventative duty concerning sexual harassment, requiring employers to take all reasonable steps, rather than simply reasonable steps, to prevent it. Although these changes apply across England, Scotland and Wales, the hospitality industry faces particular challenges because employees regularly deal with people who may be intoxicated, unpredictable or unwilling to behave appropriately. Employers should therefore be asking themselves not only how they intend to respond when a customer crosses the line, but what they have already done to reduce the likelihood of it happening.

A paying customer is not an exemption from the law

Hospitality businesses depend on their customers, and regular visitors can become familiar faces who are treated almost as extensions of the business itself. That familiarity can make confronting inappropriate behaviour uncomfortable, particularly where the individual concerned contributes significantly to the business's revenue. Consider a bartender who repeatedly receives sexual comments from a regular customer. The manager knows about the behaviour but avoids confronting the individual because he has been visiting the establishment for years. If the employee subsequently brings a harassment claim, the business may find itself answering difficult questions about what management knew, what preventative measures were available and why those measures were not taken.

Under the new provisions, an employer permits third-party harassment where harassment occurs in the course of employment and the employer has failed to take all reasonable steps to prevent it. This does not mean that every unpleasant customer interaction automatically creates liability. The conduct must fall within the relevant legal definition of harassment, and whether the employer took all reasonable steps will depend on the particular circumstances. Nevertheless, businesses will need to demonstrate more than the existence of a written policy which is never meaningfully applied. There must be a practical process for identifying risks, responding to concerns and ensuring that appropriate action is taken when necessary.

The position can become more complicated where the individual responsible has a disability or medical condition affecting their behaviour or understanding. A customer who becomes sexually inappropriate after drinking presents one type of problem, while a service user whose behaviour is affected by dementia or another medical condition may present another. Neither circumstance means employees should be expected to tolerate harassment, but the appropriate response may be different. Employers must consider their responsibilities towards staff alongside any applicable obligations towards disabled customers or service users. In some cases, additional supervision, changes to staffing arrangements or individual risk assessments may be more appropriate than exclusion. The essential point is that the business must recognise the risk and take reasonable, proportionate steps to address it, rather than dismissing the situation because the individual is vulnerable, commercially valuable or difficult to manage.

Why documentation matters

One of the greatest weaknesses in smaller hospitality businesses is the absence of a reliable reporting process. A manager may genuinely have spoken to a customer, warned them about their behaviour or made arrangements to protect a member of staff, but several months later may struggle to remember precisely what was said, when it happened or who witnessed the conversation. By that stage, the employee may have left, other staff members may have moved on and CCTV footage may have been overwritten. The business could therefore find itself unable to demonstrate what action it took, despite having genuinely attempted to address the situation.

This is an avoidable problem. Employers should establish a straightforward process for recording incidents, including the date and nature of the complaint, those involved, any witnesses and the action taken by management. Where a customer has received a warning, been refused service or been excluded from the premises, that decision should be documented alongside the reasons for it. Any subsequent review or additional measures should also be recorded. These records need not be elaborate, but they should be factual, proportionate and securely retained. An accurate incident report completed at the time will generally be considerably more useful than attempting to reconstruct events months later, particularly where the individuals involved are no longer available.

There is an additional reason why employers should be giving this greater attention. From 1 October 2026, the normal time limit for bringing many Employment Tribunal claims increased from three months to six months, subject to transitional arrangements and the applicable limitation provisions. Employers may therefore find themselves responding to allegations concerning events that occurred considerably earlier. Memories fade, messages disappear and staff move on, making contemporaneous evidence particularly valuable. Where a complaint has been raised, or there is a reasonable prospect of a dispute arising, the relevant evidence should be secured promptly. This should form part of existing incident-management arrangements and, where appropriate, the employee offboarding process. An employer who obtains relevant witness accounts while events are still fresh will be in a considerably stronger evidential position than one attempting to obtain the same information six months later.

What should hospitality employers be doing now?

The starting point is to identify the risks within the business itself. A late-night bar will encounter different circumstances from a family restaurant, while a hotel receptionist working alone may face different risks from a waitress in a busy dining room. Employers should consider where harassment is most likely to occur, what existing measures are in place and whether those measures are actually understood by the employees and managers expected to use them. This should include reviewing customer conduct policies, reporting procedures, staff training and the circumstances in which management intervention may be required.

Managers need to understand how to respond appropriately when a concern is raised, rather than simply being handed an updated policy and expected to interpret it themselves. Employees should know who they can approach, how concerns will be handled and what steps may be taken to protect them. They should also be confident that making a complaint will not result in criticism, reduced shifts or other unfavourable treatment. Businesses should decide in advance when a warning may be sufficient, when management must intervene and when refusing service or excluding a customer may be necessary. Those decisions must, of course, remain proportionate to the circumstances, but there should be a clear framework rather than leaving each manager to improvise.

For smaller employers, this need not mean introducing layers of unnecessary administration. A sensible risk assessment, a clear reporting procedure, appropriate staff training and consistent documentation may address many of the practical concerns. What matters is whether those arrangements genuinely operate within the business, rather than simply existing in a handbook that nobody consults.

Prevention is easier than defending inaction

The forthcoming changes are not an instruction for hospitality businesses to treat every awkward customer interaction as a legal emergency. They are, however, a clear warning that protecting employees cannot be left entirely to chance. A business which can demonstrate that it has considered the risks, established effective procedures and taken proportionate action when problems arise will be better placed to defend its position than one attempting to explain, several months later, why nothing was done.

With 30 October approaching, employers should not assume that the absence of previous complaints means the absence of risk. Addressing weaknesses now is considerably easier, and potentially far less expensive, than attempting to justify inaction after a complaint has been made.

Aubrey International assists employers with harassment policies, workplace risk assessments, incident procedures and wider employment compliance. Businesses concerned about their existing arrangements are welcome to arrange an initial discussion to identify where changes may be required.

This article provides general information concerning employment law in England, Scotland and Wales. Individual circumstances may require specific advice.