hospitality news Summer 2008
Hotel functions and the external comedian - it's no laughing matter
Many of you would have attended a gala event at a hotel at some point, be it for a fundraising charity ball, award ceremony, annual convention or a wedding banquet. The engagement of external comedians, particularly for corporate events, remains very popular with organisers because many perceive such form of entertainment to be light-hearted and especially accessible to the British sense of humour. The use of comedians for hotel-related events, however, carries with it legal risks that require careful management by hoteliers.
In 1996, De Vere Hotels were taken to the employment tribunal by two Afro-Caribbean waitresses who alleged that they had experienced racist and sexist jibes as a result of working at a dinner function addressed by the comedian, Bernard Manning. As they were not harassed either by a manager or by a fellow employee, the traditional rules relating to employer liability for workplace discrimination did not apply. Nevertheless, the Employment Appeal Tribunal held that the hotel was legally liable for the acts of Mr Manning. The effect of the decision had been to extend an employer’s liability for discriminatory treatment to non-employees as well as employees of the company, and it meant that an employer could potentially be held liable for less favourable treatment of employees on the grounds of race or sex carried out by customers or other third parties. In 2003, the House of Lords made a point of ruling that the Bernard Manning case was wrongly decided. The Court held that it was not sufficient to find that the waitresses had been racially abused. In order for the employer to be legally liable, it also had to be shown that the hotel had put the waitresses in that position because of their race. As white waitresses were also subjected to the same abuse, there was no racial discrimination.
Bernard Manning has since departed from us and the legal position has also changed since 6 April 2008. The Sex Discrimination Act 1975 (Amendment) Regulations 2008, which introduced a new section 6(2B) in the Sex Discrimination Act 1975, provides that an employer is to be treated as subjecting a woman to harassment where a third party subjects the woman to harassment in the course of her employment, and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. Subsection (2B) does not apply unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party. Further, there is no need for the two acts of harassment to be carried out by the same third party.
If comedians, hired by the organisers at hotel premises, make jokes which violate a person’s dignity or they create an intimidating, hostile, degrading, humiliating or offensive environment for the hotel’s staff, this could expose the hotel to potential litigation. If grievances are lodged by employees rostered to work during the event, HR will need to investigate the matter with the marketing/events manager, the client and the comedian involved. If the employees are found to have been sexually discriminated against by a third party at their place of work, compensation for injury to feelings may be awarded by the tribunal.
In the recent case of Gravell v London Borough of Bexley, a white and British employee alleged that she had been forced to listen to racist comments made by her employer’s customers. As her employer allegedly had a policy in place which said that its staff should ignore racist comments from customers and should not challenge them, the EAT found the council liable for racial discrimination as, in its view, there was ‘considerable scope’ for arguing that the council’s alleged policy had had the effect of creating an offensive environment for the employee. One potential consequence of this case is that hoteliers could, apart from sexual discrimination, also be liable for other forms of discrimination such as disability, sexual orientation, religion or belief and age flowing from discriminatory jokes made by an external comedian at their property.
Whilst hotel event bookings can add to its profit margins significantly, giving clients and external entertainers ‘carte blanche’ whilst using the hotel’s premises for an event can lead to claims of harassment and consequential reputational and financial ruin for the hotel operator or owner. A zero-tolerance policy on harassment must now apply to employees and to any third party working on the hotel’s premises. Event organisers should convey the hotel’s non-discriminatory policy to any third parties intending to use its facilities at the time of booking, otherwise, the only people laughing their way to the bank would be the aggrieved employees.
Julian Yew
Head of Hotel & Leisure Group