McScandal: the McDonald’s guide on how not to handle sexual harassment in the workplace
Sexual harassment in UK workplaces is frequent. A 2020 CIPD study found that 4% of all employees claimed to have been sexually harassed at work in the last 3 years. That number was twice as high for people aged between 18 and 34.
A recently high-profile exposé BBC accused McDonald’s of enabling a “toxic culture of sexual assault and harassment”. With 75% of their employee base being between 16 and 25 years of age, it is no wonder.
What is Harassment?
Harassment at work is defined by section 26 of the Equality Act 2010. There is a specific provision (s26(2)) which defines sexual harassment as:
• Unwanted conduct;
• Of a sexual nature;
• That violates the victim’s dignity; or
• Creates an intimidating, hostile, degrading, humiliating or offensive environment for them.
An act that meets those criteria is sexual harassment, whether the perpetrator intended to violate dignity, or create a hostile environment, or not.
McScandal
In July 2019, the Bakers, Food and Allied Workers Union (BFAWU) worked with the Independent to publish an in-depth article revealing the dizzying scale of the sexual harassment taking place at McDonald’s. These high-profile allegations attracted attention from the Equality and Human Rights Commission (EHRC). McDonald’s signed a legal “section 23” agreement with the EHRC in February 2023. It publicly acknowledged there was a problem, and made a commitment to take steps to tackle sexual harassment within the work place.
Unfortunately for McDonald’s, the BBC launched its own investigation into working conditions at the restaurant, resulting in a horrifying article published on 18 July reporting the following:
• A senior manager choking, groping and sending unsolicited sexual images to a 17 year old;
• Managers and crew members putting cash bets on which of them could sleep with a new employee first;
• Managers consistently forcing female workers to wear uniforms that were too tight;
• A manager offering to provide vapes to a 16 year old in exchange for sexual favours; and
• An outbreak of gonorrhoea which spread between staff members at a branch because sexual relationships between employees were so commonplace.
The article details how McDonald’s employees are discouraged from formally reporting these incidents due to their zero hours contracts. Investigations were handled poorly, with complainants forced to continue working alongside co-workers they had accused of harassment. Managers who were accused of sexual harassment were sometimes simply moved to another restaurant – the Independent article detailed one manager who was shuffled from restaurant to restaurant, and was only fired after “there were no more stores for him to go to”.
Employers are “vicariously liable” for the acts of its employees and agents, unless the employer “took all reasonable steps” to prevent the discrimination. Where an employee has been sexually harassed by a co-worker, and the employer has not taken all reasonable steps to prevent it, it can give rise to a harassment claim at an Employment Tribunal. The law makes it clear that this is a high bar to meet, and will vary depending on the employer’s size and resources. For a company as large as McDonald’s, a tribunal is unlikely to accept any excuses, and will expect “a culture of zero tolerance of sexual harassment” through steps such as mandatory staff training, multiple options for formally and informally reporting concerns, and thorough risk assessments. The Independent and BBC articles list countless examples of the corporation failing to do this.
In addition, the Acas Code of Practice on disciplinary and grievance procedure requires employers to conduct proper investigations into reported concerns. If McDonald’s is found not to have done this, a Tribunal could choose to increase compensation by up to 25% as a result.
McDonald’s is therefore exposed to a raft of Employment Tribunal harassment claims, and will continue to do so if it can’t or won’t resolve these issues. It may be the case that claims have been settled privately. The BFAWU reported that the company frequently uses confidential settlements to quietly close matters.
McDonald’s may find itself in trouble in a broader and more public way, because the s23 agreement it signed with the EHRC is legally binding. The company made a number of public commitments to bring their anti-harassment system up to the legal standard, but the July BBC article is clear evidence that it is failing to do this.
Recently, the EHRC announced that it had opened a confidential email hotline for harassment at McDonald’s. It seems clear that it is looking to collect further evidence. If it is not satisfied, it may end the s23 agreement and open a formal investigation into the company’s working conditions, to establish whether it has committed ‘unlawful acts’ under the EA2010. This would kickstart a long, public and costly process that could potentially end in court orders, fines for non-compliance, and sustained negative publicity.
Tips for Employers
Here are our top 5 tips to help employers eliminate workplace harassment:
- Carry out risk assessments or identify characteristics that make their workforce more vulnerable to sexual harassment;
- Address any areas of concern identified;
- Ensure you have policies in place and train all employees regularly;
- Train managers to help them identify issues and deal with complaints made;
- Make sure complaints are deal with properly and action taken against perpetrators.
JFH Law provides businesses with tailored employment and HR advice to a range of businesses, small and large. We have ample Employment Tribunal experience, in-house advocates, and tailored support packages to suit your needs. To speak to our staff, please call 0207 388 1658 or email us at lawyers@jfhlaw.co.uk.
George Rutherford, Trainee Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.
