Employment Law
On 18th July 2023, the BBC published its findings following an extensive investigation into claims of sexual harassment, sexual assault, harassment and bullying made by employees currently, and recently, employed by the fast food giant, McDonald’s.
The investigation uncovered that over 100 staff (some as young as just 17) have been subjected to groping, racist slurs, homophobia and harassment whilst working at various branches of the chain. Many described a toxic working environment where complaints regarding the inappropriate conduct of managers were ignored or trivialised. This resulted in many of the employees leaving their employment.
What is harassment?
Harassment occurs when a person engages in unwanted conduct either of a sexual nature or related to one of the protected characteristics under the Equality Act 2010, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The protected characteristics are:
- age
- disability
- gender reassignment
- race
- religion or belief
- sex
- sexual orientation
What can employers do to prevent harassment in the workplace?
In addition to the detrimental effect that harassment can have on the affected employee, claims for harassment can have a far-reaching impact on the employer and its wider workforce. There are several ways that employers can seek to prevent harassment and ensure they can show they took all reasonable steps to prevent it:
- Investigating the extent of the potential problem in its business and identifying areas of risk.
- Creating a workplace where all employees are encouraged to report inappropriate behaviour.
- Putting in place an effective anti-harassment policy that clearly sets out unacceptable behaviour, how employees can report harassment, the process that will be followed and the support available.
- Putting in place effective reporting mechanisms and ensuring all employees are aware of them.
- Training managers to deal with complaints of harassment quickly, effectively and in a sensitive way, and to ensure that the perpetrators of harassment are sanctioned.
- Providing anti-harassment training to all employees.
How should employers handle allegations of harassment?
Conducting a fair and thorough investigation into claims of harassment sends the message that the employer is serious about tackling inappropriate behaviour. Employers should ensure that complaints are handled sensitively and in accordance with any policies they may have in place.
If, following a fair and thorough investigation, a complaint is upheld, the perpetrator should be sanctioned appropriately. If a complaint is not upheld, the employer should be able to demonstrate that the investigation led them to make a reasonable conclusion. Employers should identify any lessons learned and make improvements to their procedures wherever possible to minimise the risk of similar problems moving forward.
It may be prudent for employers to seek advice on how to address complaints of harassment from a legal adviser as early as possible to ensure that the process is followed fairly and to minimise the risk of employment tribunal claims.
What if the employer fails to address the complaint?
If an employer fails to investigate a complaint of harassment, it may be in breach of its duty of implied trust and confidence. This would enable the employee to resign and claim constructive unfair dismissal.
It may be open to the employee to pursue claims in the employment tribunal against both the employer and the individual employee. The employer needs to demonstrate that it took all reasonable steps to prevent inappropriate conduct.
Employers must investigate all complaints of harassment, whether formal or informal, even in cases where the employee has left the employer’s employment or does not wish to make a formal complaint. Failure to do so could allow the perpetrator to continue the inappropriate behaviour, increase the risk of claims from other employees and could result in reputational damage for the employer.
How can we help?
Our team can advise employers on the best way of addressing and investigating claims of harassment, and help them put in place policies, procedures and training to mitigate any complaints and minimize the risk of any issues arising in the first place.
