Bullying, sexual harassment and other forms of discriminatory treatment can occur within any business, no matter how prominent – as recent reports of the hundreds of claims facing McDonald’s has shown.
According to the BBC, the fast-food giant is facing a wave of claims by current and former employees alleging unlawful treatment and a toxic work culture, despite the fact that McDonald’s signed a legally binding agreement with the Equality & Human Rights Commission (EHRC) promising to put robust measures in place to prevent such treatment and engaged external consultants to inspect its restaurants and the wellbeing of its staff.
It's a salient and timely reminder that employers, however large or small, have a duty of care for their staff and every effort should be made to prevent creating an environment that enables or allows bullying, harassment and discriminatory treatment, as well as addressing any cases that arise.
The stakes are high. Not only do such claims risk unenviable adverse publicity, but also damage to reputation and potential difficulties with the recruitment and retention of staff who fear an unsafe workplace. There are financial penalties too in the event of successful claims in the Employment Tribunal, which in the case of discrimination and harassment are uncapped.
But what can employers do to mitigate that risk both for their organisation and their employees? Thrings Employment Partner Natalie Ward looks at what harassment is and how it can be avoided in the workplace.
What does the law consider ‘harassment’ to be?
Whilst harassment is a term often interchangeable with others such as ‘intimidation’ or ‘abuse’, there is in fact a more precise legislative definition.
There are three types of harassment prohibited in the Equality Act 2010:
- Unwanted conduct in relation to a protected characteristic which has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment;
- Sexual harassment – where a person engages in unwanted conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment;
- Less favourable treatment because an employee rejects or submits to unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
Changes to the law regarding Sexual Harassment
New legislation in the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force in October 2024, places a legal duty on employers to take proactive and reasonable steps to prevent sexual harassment in the workplace.
Whilst employees cannot yet bring a standalone claim for third party sexual harassment, this has been proposed under the new Employment Bill, and in the meantime, employers should note that guidance from the EHRC makes it clear that the new preventative duty extends to requiring employers to take reasonable steps to prevent the sexual harassment of employees by third parties, such as clients or customers.
If an employee successfully claims sexual harassment, Tribunals will consider whether the employer has met this preventative duty. Failure to comply could result in an uplift in compensation of up to 25%.
What can employers do to prevent harassment?
- Have the right policies in place - Employers need to have robust and comprehensive policies and processes in place to ensure they deal with claims of harassment appropriately. These will need to state such behaviour will not be tolerated, giving explanations and examples of what constitutes harassment. In order to be conducive to a successful workplace culture, they will need to be enforced fairly and consistently.
- Carry out a risk assessment - Look at any issues from previous events to identify patterns or areas of concern and encourage managers to flag any underlying team tensions or dynamics that could pose risks. For events that fall within the course of employment (which would include social and training events or where employees come into contact with third parties), employers should consider how the setting, activities, and guest list might influence behaviour. Employers should also consider the demographic of their work force. As exemplified in the McDonald’s case, younger employees at the start of their working lives are likely to be more vulnerable.
- Set clear expectations - Remind employees of the organisation’s code of conduct and relevant internal policies (such as anti-bullying and harassment policies, sexual harassment policies and grievance procedures) at regular intervals and ensure employees know how and where to report concerns, including anonymous options if available.
- Provide training to staff - Offering training for all staff on recognising and addressing inappropriate behaviour will also help to encourage them to consider their own and the appropriateness of their conduct in the workplace. Providing managers with access to suitable training will also help them to identify inappropriate behaviours, provide a safe working environment and empower them to address any incidents fairly.
Addressing harassment in the workplace
Should an incident of bullying or harassment arise within the organisation, employers should ensure they meet the following criteria to bring the matter to a swift resolution:
- Address it promptly and thoroughly – If left unchecked, harassment of any nature can continue and could even worsen. Quick but comprehensive intervention is needed.
- Stick to the script – Encourage managers and those conducting investigations to follow policies and processes to the letter to avoid any potential for criticism, controversy or claims of constructive dismissal. Seek sound legal advice in the event your policies are, for whatever reason, unable to address a particular issue.
- Keep everything confidential – While any investigation is taking place, the matter should remain private as any allegations, if proven to be untrue, could result in defamatory action if a person’s reputation is harmed in any way.
- Keep records – This enables employers to track any future patterns of behaviour as well as protecting the organisation in the event of any contention with the outcome of dispute resolution.
Thrings’ Employment lawyers are experienced in dealing with business matters that affect the workforce, including workplace harassment, and has acted for both employers and employees from start-ups and SMEs all the way to multinational corporations across a wide range of employment matters. To find out how they can help strengthen your polices, and solve your disputes, please get in contact.