In July 2023 the BBC undertook an investigation into the workplace culture at McDonald’s. The investigation revealed a “toxic culture of sexual assault, harassment, racism and bullying”.

In November 2023 Alistair Macrow, Senior Vice President and Global Chief Marketing Officer for McDonald’s UK and Ireland, appeared in front of parliament’s Business and Trade Committee during which he promised to “clean up” behaviour within the chain.

However, over a year on from the BBC’s initial report, McDonald’s workers have alleged that they are still facing sexual abuse and harassment at work. One of the allegations includes a worker being inappropriately touched by managers, sexually harassed by customers and then being told to “suck it up” upon reporting the incidents.

Staff and former staff are taking legal action over allegations of widespread harassment, implicating over 450 McDonald’s restaurants.

In this article we will review the definition of harassment, discuss the liability of employers when employees are harassed by colleagues, the reasonable steps employers should take to prevent harassment and the legal position of third-party harassment.

What is Harassment?

Harassment is prohibited in the workplace under the Equality Act 2010.

The general definition is ‘unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating the dignity of an individual or creating an intimidating, hostile, degrading, humiliating or offensive environment’.

The general definition of harassment applies to unwanted conduct where it relates to one of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation (it does not apply to maternity and civil partnership, and pregnancy or maternity).

Sexual harassment is separately defined as unwanted behaviour of a sexual nature that has the purpose or effect of violating the dignity of a worker or creating an intimidating, hostile, degrading, humiliating or offensive environment. For more information about the new legislation requiring employers to take reasonable steps to prevent sexual harassment in the workplace, read our article The New Duty on Employers to Prevent Sexual Harassment Comes into Force on 26th October 2024.

A one-off incident can amount to harassment and the complainant does not need to have made the individual aware that the conduct was unwanted.

Harassment of Employees by Colleagues

Several of the allegations raised against McDonald’s involve the harassment of employees by their colleagues. Under the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer. As such, an employer can be liable for harassment, whether or not the harassment was done with the employer’s knowledge or approval.

There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the act. However, this is not typically relied on by employers as demonstrating that all reasonable steps have been taken is a high bar to reach. Establishing the defence is therefore challenging for employers.

To succeed with the “all reasonable steps” defence, the employer must have taken steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.

Steps Employers Should Take to Prevent Harassment

The reasonable steps that employers should take to prevent harassment will usually include:

1. Having in place effective policies and procedures

Implementing anti-harassment and bullying policies as well as an equal opportunities or diversity equity and inclusion policy. The policies should be monitored and regularly reviewed.

2. Making all employees aware of the policies and their implications.

A paper policy which no one knows about or are unfamiliar with will not be worth the paper it’s written on if scrutinised by an employment tribunal.

3. Providing adequate training to all staff on equal opportunities, discrimination and harassment.

The training must be more than merely a box-ticking exercise, it must address issues that are known to exist in the workplace and give employees an opportunity to apply what they have learnt during the training.

Managers and supervisors should receive additional training in identifying and handling harassment and equal opportunity issues.

4. Considering proposals by employees in relation to these aspects and acting upon them if the employers think it would be reasonable to do so.

5. Detecting and encouraging reporting of harassment

Employers should be proactive in detecting the warning signs of harassment rather than solely relying on employees to raise the issue.

Employers should give employees every opportunity to raise issues of harassment for example through informal one-to-ones, sickness absence or return to work meetings, performance review meetings etc.

6. Dealing effectively with complaints and taking appropriate disciplinary action if necessary.

7. Carrying out risk assessments.

Employers should make assessments of the risks of harassment occurring in the course of employment.

When undertaking risk assessments employers should:

1.        Consider the risks of harassment occurring in the course of employment;

2.        Produce an action plan setting out the preventative steps that they will take to address the risks;

3.        Consider which of those steps it would be reasonable to take; and

4.        Implement those reasonable steps.

Third Party Harassment

Another aspect of the harassment alleged by McDonald’s workers is being harassed by customers whilst working at the chain.

Under the current legislation, an employer will only be liable for harassment of their employees by third parties (such as customers, clients, suppliers etc) where an employee can show that the employer failed to protect them from the harassment and that this failure was because of a protected characteristic, rather than merely for failing to take reasonable steps to prevent the harassment. As such, under the current legislation there are only very narrow circumstances in which an employee can bring a claim against their employer for third-party harassment.

However, the Employment Rights Bill has indicated that employer liability for third-party harassment will be introduced. The provisions of the Bill set out that employers will be liable for third party harassment unless they can show that they took all reasonable steps to prevent the harassment. As such, employers, particularly those in retail and hospitality, should in future be looking to take steps to further protect employees from harassment by third parties to avoid liability. For more information on the Employment Rights Bill 2024 please see our article Employment Rights Bill 2024 – A summary of the reforms.

Lessons to Learn

• Employers are liable for harassment of their employees by their colleagues, unless they have taken all reasonable steps to prevent it.
• There is a high bar for employers to reach to be able to rely on the “all reasonable steps” defence as the employer must have taken all reasonable steps before the act of discrimination or harassment occurred to seek to prevent it.
• Currently employers will not usually be liable for third party harassment. However, this is likely to change in the near future.

For any assistance dealing with harassment claims, please contact the Geldards Employment Team.