Transgressive behavior by guests and the employer's duty of care in the hospitality industry

Hospitality, that’s the credo, but employees may be confronted with awkward or even transgressive behavior from guests. This could include sexual innuendo, physical touching and verbal or physical aggression. Whilst customer focus is the guiding principle, that should obviously never come at the expense of staff safety and well-being.

What is transgressive behavior?
What is transgressive is different for everyone and it is therefore difficult to define. In any case, it is behavior that the recipient perceives as inappropriate or threatening, sometimes with major psychological consequences. That this behavior comes from paying guests often makes it difficult for staff to counter it. This makes the employer’s role all the more important.

Also read: Sexual transgressive behavior in the hospitality industry

The employer’s duty of care
Under the Dutch Working Conditions Act, the employer is required to provide a safe workplace. That duty of care includes having a policy in place and taking action against psychosocial stress caused by, among other things, undesirable behavior by third parties.

Thus, the employer must take measures to prevent this behavior and, if it does occur, intervene quickly and effectively. This could include addressing the guest directly, escorting the employee (or having them escorted) away from the situation or – if necessary – throwing the guest out.

In addition, the employer must provide aftercare, by, for instance, offering a sympathetic ear or making a referral to professional help. If the employer does not make sufficient efforts to ensure a safe working environment and the employee suffers harm as a result, the employer may be held liable for this.

Case law: guests’ behavior also falls under the duty of care
Although case law on this specific topic is scarce, there are signs that courts judge severely when an employer does not take its duty of care seriously. Employers should take active measures when there are reports of inappropriate behavior, even if that behavior comes from outside the organization. In a case where an employee had repeatedly been harassed by a guest, the employer was accused of taking too little action. The judge found that by not intervening in a timely manner, the Working Conditions Act had been violated and damages were awarded to the employee.

Specifically, what can employers do?

1. Codes of conduct and house rules: establish clear rules for guests stating that transgressive behavior will not be tolerated. This could be communicated in advance via the reservation confirmation or at check-in.
2. Staff training: teach employees to recognize and report transgressive behavior, and train supervisors on how to act effectively.
3. Low-threshold reporting: provide a safe and accessible way for employees to report incidents, anonymously if necessary.
4. Prompt action and aftercare: take immediate action against the guest once a report has been made and provide psychological support to the employee as needed.

Conclusion
Transgressive behavior by guests is a real risk that employers should not underestimate. The law requires them to ensure a safe working environment, and the inconvenience of taking action against guests is part of that. Through clear rules, prompt action and proper guidance, employers can show that they are serious about caring for their staff. This is good for their people and will prevent problems.