McDonald’s have recently signed a legal agreement with the Equality and Human Rights Commission (EHRC) following concerns over how it has handled sexual harassment complaints made by its UK staff.

A union representing some McDonald’s employees has claimed that in 2019, more than 1,000 complaints had been lodged. The agreement signed with the EHRC requires McDonald’s to comply with a number of measures to better protect its workers in the UK from sexual harassment. This includes:

  • communicating a “zero tolerance” approach to sexual harassment,

  • providing anti-harassment training, and

  • improving its policies to better respond to complaints.

EHRC chairwoman Baroness Falkner was “pleased that McDonald’s has signed this agreement to signal their intent to make their restaurants safe places to work.” She hopes that “the improvements they put in place can set an example for others to follow, whether in the hospitality industry or elsewhere.”

What is sexual harassment?

Sexual harassment is unwanted behaviour of a sexual nature which must have either:

  • violated someone’s dignity, whether it was intended or not; or

  • created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.

An individual can experience sexual harassment from anyone they come into contact with because of their job, including:

  • someone they work with e.g. a manager, supervisor or someone else in a position of authority

  • someone high profile or influential

  • a customer, client, or member of the public.

Sexual harassment can be a one-off incident or an ongoing pattern of behaviour and can happen in person or online (e.g. through email, social media, or messaging tools).

Some examples of sexual harassment include:

  • flirting, gesturing, or making sexual remarks about someone’s body, clothing, or appearance;

  • asking questions about someone’s sex life;

  • telling sexually offensive jokes;

  • making sexual comments or jokes about someone’s sexual orientation or gender reassignment;

  • displaying or sharing pornographic or sexual images, or other sexual content;

  • touching someone against their will, for example hugging them;

  • sexual assault or rape.

Can an employer be liable?

Though the perpetrator of the sexual harassment are themselves liable for their own actions, employers can also be held ‘vicariously liable’ for the actions of the perpetrator.

The Equality Act 2010 requires employers to do everything they reasonably can to protect staff from sexual harassment at work.

How should an employer handle a sexual harassment complaint?

The Advisory, Conciliation and Arbitration Service (ACAS) contains guidance for employers on how to handle a sexual harassment complaint. In summary, an employer should:

      1. Take any complaint of sexual harassment very seriously.

      2. Handle any investigation in a way that’s fair and sensitive to the person who made the complaint, any person who witnessed it, and the person who has been accused of sexual harassment.

      3. Keep an open mind. As an employer, you must not allow your own views to influence a situation or dismiss a concern. For example, if you get on well with the person accused of sexual harassment, or if you do not personally find the behaviour offensive or unwanted. You must also not doubt a sexual harassment complaint simply because it happened away from other people and so has no witnesses to it.

      4. Follow the right procedures in line with the ACAS Code of Practice on disciplinary and grievance procedures.

      5. Tell the people involved in the complaint what the process will be.

      6. Provide support to the person making the complaint by:

        1. making sure the reporting of sexual harassment is as easy as possible;

        2. ensuring the person who’s experienced the sexual harassment or witnessed it feels safe and protected;

        3. offering mental health support, for example through an employee assistance programme, if you have one;

        4. talking to them privately and allowing plenty of time;

        5. ensuring the person investigating the complaint is impartial and trained for the role.

      7. Provide support to the person being accused by:

        1. offering mental health support;

        2. talking to them privately and allowing plenty of time;

        3. assuring them that the person investigating the complaint is impartial and trained for the role.

      8. Support the person making the complaint if they have been sexually assaulted or raped at work with reporting the matter to the police if they wish to report it.

      9. Keep the complaint as confidential as possible.

      10. Handle the complaint as quickly as possible.

      11. Consider whether you need to take steps to protect the person who has made the sexual harassment complaint, as well as other staff, e.g. by suspending the person accused whilst the complaint is being dealt with (where there is a serious risk). However, you should think very carefully before suspending someone as there may be other options available.

Once you have carried out a full and fair procedure looking into the complaint, you should decide on the outcome, including whether the complaint is upheld or not. A complaint will usually be upheld if you have decided there is enough evidence to do one or both of the following:

  • recommend actions that need to be taken to resolve the complaint;

  • follow up with a disciplinary procedure and consider disciplinary action if appropriate.

If you would like advice on the above or on any employment law matter, then please contact our expert employment law and HR team on 0845 287 0939 or submit your enquiry online.