McDonald’s has recently been accused of a ‘toxic’ work culture which allows harassment to persist, with widespread use of non-disclosure agreements and confidentiality clauses in settlement agreements to mask the problems. In 2019, over 1000 complaints, in the UK alone, were raised by the Bakers, Food and Allied Workers Union against the food giant.
In response, McDonald’s have made the decision to sign an agreement with the Equality and Human Rights Commission (EHRC). The agreement is known as a Section 23 Agreement and under such, McDonald’s have pledged to take meaningful action to prevent unlawful discrimination and harassment, committing to a ‘zero- tolerance’ approach to sexual harassment and investing in training across the business. If McDonald’s fails to deliver on these promises, they can be enforced by the EHRC in court.
Under the principle of vicarious liability and the Equality Act 2010, employers can be found to be legally responsible for the act of its employees. Employees can bring claims against their employers, a individual colleague, or both. Typically, an employee bringing such a claim will centre their attention on the employer as they are more likely to provide compensation.
Employers can avoid vicarious liability for sexual harassment claims if they can show that they ‘took all reasonable steps” to prevent their employees from acting unlawfully, this is what is known as a Section 109 defence.
A section 109 defence sets a high bar for Employers. To be successful employers must satisfy a two-tier test. The first, whether an employer took all reasonable steps to prevent an employee from committing such acts. An employer must show that they have a robust, up to date and actively enforced Harassment and anti -discrimination policy; the existence of such policies and their circulation to employees is not enough. Secondly, a tribunal will consider whether an employer could have taken further steps which were ‘reasonably practicable’ to prevent the act. When considering the ‘reasonably practicable’ steps of an employer, a tribunal will take into consideration the resource and size of the organisation.
The purpose of Section 109 is to determine a fair equilibrium, as ultimately it would be unfair for employers to be held responsible for every act of deliberate wrongdoing of their employees, however an employer does have control and is responsible for the culture it creates.
Considering the position Mcdonald’s found themselves in, the main takeaway for employers is that whilst an up-to-date policy is necessary, it isn’t enough. It is important that employers create a culture in which employees feel comfortable reporting any concerns they have and are confident that their complaints will be taken seriously and dealt with both promptly and robustly.
If you think your business would benefit from a review of the procedure for addressing complaints of harassment, contact the employment team at firstname.lastname@example.org to see how they can help you.
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