The recent news story regarding harassment claims from workers at McDonald's highlights the importance of ensuring organisations have a robust approach to eliminating workplace harassment and when it occurs, and a clear process in place to manage it. Simply having a policy in place is not enough.
What is harrassment?
The law relating to workplace harassment can be found in the Equality Act 2010. The relevant provisions define harassment to be "unwanted conduct of a sexual nature or related to a relevant protected characteristic (such as sex, age, race, religion, and belief, disability, gender reassignment or sexual orientation) that has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment". This is a very specific definition, and in order for a claim of harassment to succeed, the alleged behaviour complained about must meet all of the constituent requirements of the definition.
In particular, it is the context in which the behaviour is alleged to have been exhibited that is crucial. It is an employment tribunal that determines whether behaviour alleged to be harassment meets the statutory definition. For conduct to amount to harassment, the harasser does not need to intentionally harass, but nevertheless the complainant needs to persuade the tribunal that the alleged behaviour has caused them to feel harassed. To counterbalance this subjective element of the test, the employment tribunal will consider whether it was objectively reasonable for the complainant to consider such behaviour as harassment, so it is not simply the case that it is up to an individual to claim that behaviour is harassment for it to be successful. Bear in mind as well that harassment can include a wide range of behaviours, more than just physical contact and/or inappropriate comments.
Preventing harassment
The starting point for employers to demonstrate they are taking steps to prevent harassment and dealing robustly with any alleged harassment that does occur is to have a clear and updated policy. However, it is not the case that employers can show they have taken sufficient steps to prevent harassment from occurring by simply having a policy in place. Employment tribunals will increasingly look to see whether the policy is widely known about and understood within the workforce and whether it is embedded within the organisation.
One way to demonstrate that a policy is embedded within an organisation is to evidence good quality, comprehensive training at regular intervals, ideally yearly, for managers and employees. In the McDonald's case, it is alleged that training was carried out via a webinar whilst an individual was performing operational tasks, thereby not properly paying attention to the learning. Employers should take every step to ensure equality, diversity and inclusion training is comprehensive, meaningful and has a lasting impact. Regular, good quality and in person training in this area is at the forefront of a people strategy for good and responsible employers.
Responding to complaints
Inevitably, despite taking such steps, harassment may still occur. In such a situation, it is important that employees are aware of how to report allegations of harassment, where to report it and who to report it to. Equally employers need to ensure that they respond to such allegations robustly by investigating all allegations that come forward and taking such action as may be appropriate. In places where it is found that harassment has occurred, this should result in disciplinary action being taken towards the perpetrator, which in serious cases, could lead to the employee being dismissed.
The consequences of getting it wrong
If employers fail to establish a clear stance on anti-harassment, embed quality training within their organisation, and robustly investigate/manage complaints of harassment that are received, it is likely to be very hard to defend any such claims in an employment tribunal. As well as financial exposure to compensation awards, such claims and allegations can also cause considerable reputational damage. McDonald's is the latest big-name to have a significant number of harassment complaints that do not appear to have been appropriately managed. Whilst smaller employers may think this is a problem for large household names, the law applies equally to them and the compensation that an employee may be awarded is calculated in the same way.
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