As McDonald’s responds to hundreds of employee complaints about sexual harassment and bullying at its franchises, Francesca Charlton highlights the steps employers should take to prevent unwanted conduct.
Last week the chief executive of McDonald’s UK & Ireland, Alistair Macrow, informed MPs that he has received 407 employee complaints since the BBC’s investigation into its workplace culture in July 2023. The investigation, which received allegations from more 100 current and recent staff, revealed a toxic culture of sexual assault, harassment, racism and bullying, with workers as young as 17 being groped and harassed “almost routinely”.
Appearing before the Business and Trade Committee, Macrow revealed that 157 out of the 407 complaints had been investigated so far, 17 of which related to sexual harassment resulting in disciplinary action. He also revealed that McDonald’s UK was receiving one or two sexual harassment allegations each week.
Allegations relating to sexual harassment have increasingly made the headlines in recent years; just the other week an employment tribunal ruled that two Pizza Hut workers had been sacked for speaking up about being sexually harassed.
Legal protection for employees
Under the Equality Act 2010, employees and workers are protected from harassment related to a ‘protected characteristic’ (age, disability, gender reassignment, race, religion or belief, sex or sexual orientation), as well as sexual harassment, which is defined as “unwanted conduct of a sexual nature, which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Such conduct can include sexual comments or jokes, displaying sexually graphic images, suggestive looks, propositions and sexual advances and asking intrusive questions about a person’s private or sex life or a person discussing their own sex life.
In addition, a new law aimed at preventing sexual harassment has recently received Royal Assent. The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a new duty on employers to take ‘reasonable steps’ to prevent sexual harassment.
Sexual harassment
McDonald’s dismisses 18 staff following sexual harassment claims
Originally a private members’ bill proposed by Wera Hobhouse MP, the Act has had two significant changes implemented during its passage through Parliament, both of which reduce the weight of the new obligations on employers. As originally drafted, the bill proposed to re-introduce protection against harassment of employees by third parties (such as customers and clients), but this was scrapped in the final draft. The original bill was also drafted to require employers to take “all reasonable steps” to protect employees from sexual harassment, but the final draft has removed the word “all”, meaning employers will only be required to take “reasonable steps” to prevent sexual harassment.
What does this mean for employers?
Whilst these amendments have watered down the final version of the Act, employers will still need to be mindful of these new obligations. When the Act comes into force next year, if an employee succeeds in a claim for sexual harassment and the employer is found to have not taken reasonable steps to have prevented it, an employment tribunal will be able to uplift the compensation awarded by up to 25%. Crucially, this uplift will apply to all the compensation that has been awarded for any type of harassment as part of the employee’s claim. This therefore has a significant potential impact on the quantum that can be awarded in harassment claims.
Employers should also be aware that even though the Act has removed the express requirement to prevent third party harassment, employers may still be liable under the existing legislation if they fail to adequately deal with complaints from employees relating to third party harassment.
Key steps for employers
This new legislation, coupled with the damaging revelations from McDonald’s, serve as a stark reminder to businesses of the importance of taking proactive steps to prevent incidents of harassment, discrimination and bullying.
As a starting point, employers should ensure that they have adequate anti-bullying and harassment policies in place. This should confirm who is protected, define sexual harassment and give clear examples of it, set out a clear and effective reporting structure for receiving and responding to complaints and confirm that disciplinary action will be taken for breaches of the policy, which could include dismissal.
This new legislation, coupled with the damaging revelations from McDonald’s, serve as a stark reminder to businesses of the importance of taking proactive steps to prevent incidents of harassment, discrimination and bullying.”
While the final version of the Act abandoned introducing employer liability for third-party harassment, Equality and Human Rights Commission guidance states that third-party harassment should be addressed in such policies.
Simply having these policies in place, however, will not be enough to protect employees and stave off claims and liability. Employers should be taking proactive steps to mitigate the risks by regularly reviewing and refreshing policies and reporting structures, running regular training sessions with employees, and conducting regular workplace reviews to ensure that the policies are understood and the protective measures in place are effective.
Employers should also assess whether there are any risks that might increase the likelihood of sexual harassment and what steps can be taken to minimise them. For example, companies may be exposed to greater risks at work-related social events due to excessive alcohol consumption – a particularly important consideration in the lead up to Christmas. Employers should therefore assess such risks and take steps to address them, for example by limiting alcohol and/or reminding staff of the standards expected of them.
Employers should ensure that any complaints are taken seriously, actioned immediately and, in so far as possible, dealt with confidentially.
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