Providing a safe workplace when dealing with factors outside employer's control
Question: How should an employer handle harassment of an employee by a non-employee over whom the employer has little control, such as a customer or supplier?
Answer: Under occupational health and safety legislation, an employer has a duty to provide a safe workplace. This duty includes the obligation to protect its employees from workplace hazards.
In many jurisdictions, it is now expressly recognized that workplace hazards can include bullying and harassment. In British Columbia, for example, every employer must establish a policy that prohibits bullying and harassment in the workplace, and contains effective procedures for dealing with bullying and harassment incidents and complaints. The policy procedures must ensure a reasonable response, aim to fully address the incident, and ensure future bullying and harassment is prevented or minimized. Every employer must also provide each employee with training on its bullying and harassment policy.
Employers also have an obligation under human rights legislation to prevent sexual harassment and harassment on other grounds that are statutorily protected, such as race, sexual orientation, place of origin, and political belief.
In most cases, the respondent in a harassment complaint will be an employee over whom the employer has control. If the employer determines after investigation that one or more of its employees has engaged in harassment, it will have the ability to take appropriate corrective action, which may include discipline or discharge.
However, what can an employer do when an employee complains that she is being harassed by a customer, supplier or another third party over whom the employer does not have the same level of control?
Because the employer has an obligation to provide a safe workplace and to protect its employees from harassment on protected grounds, it must not turn a blind eye to the harassment and declare that there is nothing it can do. Rather, the employer should conduct an investigation into the alleged harassment, and if it determines harassment has occurred, take reasonable steps to prevent its employees from being exposed to the workplace hazard. This may include such action as: sending a demand letter to the third party; removing or banning the third party from its property; refusing to conduct further business with the customer or supplier; demanding that the customer or supplier assign a different representative to the employer; or moving the complainant to a different department. An employer who fails to take such steps may find itself exposed to liability.
