The new duty

Under the new duty, employers are required to take reasonable steps to prevent sexual harassment of their employees in the workplace (for further details on the new duty and what may constitute reasonable steps, please see our previous publication). This is a positive and ongoing duty, so employers should ensure that they are frequently monitoring and assessing the effectiveness of the steps they have put in place and, as a result, determine whether any further actions are required to address the risks identified. Risk assessments should regularly be reviewed and further steps taken if existing measures are not reducing the risk of sexual harassment occurring.

Power imbalances – a key risk area

There are a number of factors that can increase the risk of sexual harassment taking place in the workplace (for further details, we discuss risks and risk assessments in our training package) and one of these in particular, is power imbalances between colleagues.

Interestingly, not only has the situation at McDonalds demonstrated the risk of power imbalances between a manager and a younger subordinate, it also brings into focus the heightened risk of zero-hour / low-hour contracts – both of which are popular arrangements for young workers and those working in the gig economy. Whilst such arrangements provide greater flexibility (a benefit for both the employer and the individual engaged), zero-hour and low-hour contracts by their nature create a power imbalance between the parties involved, meaning that workers are more likely to become vulnerable to abuse and coercion. This power dynamic was raised as a specific concern by the Business and Trade Committee when questioning the head of McDonalds, Alistair Macrow. The government is already intending to crack down heavily on what it views as exploitative contracts, so it will be interesting to see whether the government now takes more immediate steps to address this issue. In the meantime, employers should be mindful of these types of arrangements when assessing the potential risks in the context of sexual harassment and carefully consider what reasonable steps can be taken to combat such vulnerabilities. It is important that those with the power to grant or refuse shifts are under no misapprehension that they can abuse that power without consequence.

What is clear however, is that there is becoming an increased focus on employers and how they are tackling issues of sexual harassment in the workplace, particularly in ‘at risk’ industries such as retail and hospitality. Whilst McDonalds has attempted to put in place measures to address what appears to be a culture of abhorrent behaviour, and has stated that 29 employees have been dismissed since their investigations began [1], it is questionable as to whether such measures would be considered reasonable and subsequently, enough to mitigate liability in this respect.

What can we do?

Employers should be taking a hard line on any allegations of sexual harassment in the workplace and proactively identifying areas of risk. If you would like any assistance or advice around the new duty and what reasonable steps you can be taking, please reach out to our employment team for advice, or look at our employee training package, for assistance with changing behaviours in the workplace.

[1] McDonald’s boss says 29 people fired over sexual harassment – BBC News