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Is having an Anti-Harassment Policy in place a valid defence to a Discrimination claim?

Reasons to choose Wilson Browne

The Bakers, Food and Allied Workers Union has claimed that over 1,000 sexual harassment cases have been reported in McDonald’s restaurants across the UK.  It is alleged that the Company has frequently failed to deal with such claims and that they are often masked through the use of ‘waiver of claims’ and ‘non-disclosure’ clauses in Settlement Agreements.

As a result of adverse publicity due to these claims, McDonald’s have signed a legally binding agreement with the Equality and Human Rights Commissions (“EHRC”) to take meaningful action to prevent sexual harassment.

The agreement outlines the Company’s commitment to take a number of measures to better protect their workers in the UK. These measures include communicating a “zero tolerance” approach to sexual harassment, providing anti-harassment training to workers and implementing effective policies to better respond to complaints.

This agreement with the EHRC is known as a ‘section 23 agreement’ and is entered into by an organisation in exchange for the EHRC not taking enforcement action against them. Similar agreements have previously been entered into by Sainsbury’s after an employee had won a claim for sexual harassment and, more recently, IKEA, after an employee had made a complaint of sexual harassment and assault.

If the EHRC believes that an organisation has failed to or is unlikely to comply with the terms of the agreement, it can apply to the Court for an order requiring compliance.

In line with the recent developments above, the Government is currently working on introducing new legislation to place greater responsibility on organisations to protect employees against sexual harassment.

Once the new legislation is in place, organisations will have a duty to employees to take “all reasonable steps” to prevent their employees from experiencing workplace sexual harassment.

In addition to this, the new legislation would also make organisations potentially liable for the harassment of staff by third parties, such as clients or customers, if the employer has failed to take all reasonable steps to prevent harassment.

Whilst, unhelpfully, “all reasonable steps” has not been defined, it is most likely that Employment Tribunals will be considering whether an organisation has robust, regularly updated and genuinely enforced sexual harassment policies (or more generally, and also applicable to any kind of anti-discrimination or harassment) in place.

However, merely having such policies in place or directing employees to the Company’s intranet will not be enough. Employers must take steps to train employees about sexual harassment or, as a matter of fact, any kind of harassment.

The training must also be regular, as demonstrated in a relatively recent case of Allay (UK) Ltd v Gehlen, whereby an employee was faced with numerous racist comments throughout the course of their employment. In this case, the employer sought to argue that it had taken ‘all reasonable steps’ to prevent the harassment by having anti-harassment policies in place and having provided relevant training to all employees. However, the training took place several years prior to the incident and, accordingly, the

Employment Tribunal found that the training had become ‘stale’ and was no longer effective to prevent harassment. The employer should have taken further reasonable steps by way of providing refresher training for its employees, and merely putting in place training opportunities was not enough. The employer’s appeal was dismissed.

Following these developments, we would recommend that employers carry out a review of their policies and training materials to ensure that the policies in place are comprehensive, rigorous and cover every aspect of employment. It is prudent that the training delivered on the issue of any kind of harassment is genuine and not merely a ‘tick box’ exercise.

It is important that employers give thought to the quality and the frequency of training as well as ensure that it is applied in practice by those who have undergone it, and if and when an incident is reported, employers must seek to take appropriate action immediately.

For further guidance, please see our guide or reach out to our Employment Team.