McDonald’s – a ‘predator’s paradise’ – a warning for employers on sexual harassment

McDonald's has been hitting the headlines for all the wrong reasons, with more than 700 current and former employees seeking to bring claims against it for discrimination and harassment.

More than 450 restaurants are being implicated in the claims, which include serious allegations of sexual harassment (with one 17 year old Claimant alleging a shift manager in his 30s asked her for sex in exchange for extra shifts), racism, disability discrimination and homophobia. All Claimants were aged 19 or below at the time of their employment, with Liam Byrne (the Chair of the Business and Trade Committee) referring to McDonald's as a "predator's paradise".

Alistair Macrow, the UK Chief Executive of the fast-food giant, insisted that McDonald's has undertaken 'extensive work' to address issues of discrimination and harassment, with 29 people having been dismissed over the past 12 months in respect of sexual harassment allegations. However, it is clear that McDonald's actions have fallen far short of providing the "secure, safe workplace where people are respected" described by their CEO and have categorically failed to instill the communicated values and cultural ideals of McDonalds throughout its workforce. Not only must an organisation's culture be actively communicated and demonstrated from the top, investment in training (particularly for those in management roles) is critical to ensuring all employees are aware of and understand their obligations and that more than simply lip service is paid to culture and ethos.

A concerning trend

Harassment in the retail and consumer sector has continued to increase in recent years, with our research into the same revealing that nearly two-thirds of workers have experienced offensive behaviour. With the introduction of the new preventive duty in October of last year - requiring all employers to take proactive reasonable steps to prevent sexual harassment of their employees (from both other employees and third parties such as customers/clients/suppliers) - the onus is on employers to demonstrate that they are actively taking the lead on addressing identified issues and protecting the safety and well-being of their staff.

Whilst there is no standalone claim in respect of the preventative duty, the EHRC is able to take enforcement action and a Tribunal can increase an award of compensation by up to 25% where there has been a failure to comply. Further, the government has confirmed in the Employment Rights Bill that it will be enhancing this obligation to require an employer to take 'all' reasonable steps and employers would therefore be well advised to comply on this basis now. A private members bill is also proposing to expand the obligations on employers under the Health & Safety at Work Act to include a preventative duty, which, whilst unlikely to become law, demonstrates that the importance, employee awareness and employer obligations in respect of this issue are only likely to increase.

What amounts to reasonable steps will depend on the size and resources, as well as the industry/sector of each employer, but we consider undertaking specific risk assessments, having a clear and robust anti-harassment policy and implementing regular and comprehensive tailored training for staff will likely be a base level for compliance.

The position of McDonalds is a clear warning for employers not to make assumptions as to the culture of its workforce and to take steps to monitor and engage with their staff base, taking actions to respond and deal with any issues that arise from the same.

What can employers do?

In collaboration with the Retail Trust, we have developed the Retailers Against Harassment Certification to support employers in the retail & consumer sector in their efforts to combat the rise in harassment in the workplace and foster safer working environments for staff. The process involves an in-depth audit of the employer's performance against a challenging but consistent standard of approach and commitment to tackling workplace harassment, assisting employers to look after their people, reduce operational risk and be recognised as proactive and supportive employers on the issue of harassment and safety in the workplace. Should you be interested in discussing the certification programme in more detail and/or have any other questions or require support in respect of your obligations on harassment, please do not hesitate to contact Nathalie Ingles or Patrick Howarth below.