Binding agreement to tackle sexual harassment in the workplace

It was reported recently that McDonald’s has signed a binding agreement with the Equality and Human Rights Commission (EHRC) to protect staff from sexual harassment. The Bakers, Food and Allied Workers Union had previously raised concerns that more than 1,000 female workers had experienced sexual harassment at McDonald’s in the UK. So what is a binding agreement, and what does it mean for employers?

What is a binding agreement?

The EHRC is the regulatory body that is responsible for enforcing the Equality Act and it has a number of powers available to it. One of those powers is to enter into a binding agreement with employers where it has evidence that the employer has breached the Equality Act. This type of agreement is referred to as a ‘section 23’ agreement, because the power to enter into the agreement is set out in Section 23 of the Equality Act. The stated aim of the EHRC is to help employers to improve their approach to equality, and to support the employer to ‘do the right thing’.

Under the agreement, the employer must undertake not to commit an unlawful act, or take positive steps to address the issues which may have led to the unlawful act, such as discrimination, occurring. In exchange, the EHRC will not take enforcement action against it. The agreement can be varied or terminated at any time by agreement. If the EHRC believes that the employer has failed to comply with the agreement, or is not likely to comply, it may commence court proceedings to compel the employer to comply.

What does the binding agreement include?

The agreement will include an action plan to help address the issues, such as discriminatory behaviour, occurring. The employer then commits to delivering the plan over a set period of time. The agreement is published on the EHRC website.

For example, the agreement with McDonald’s includes commitments to:

Communicate a zero tolerance approach to sexual harassment.
Enhance policies and procedures to prevent sexual harassment and improve responses to complaints.
Deliver anti-harassment training for employees.
Introduce specific training and materials to help managers identify areas of risk within their restaurants and take steps to prevent sexual harassment.
Monitor progress towards a safe, respectful and inclusive working environment.

Whilst it is voluntary for an employer to enter into an agreement, if they do not do so the EHRC may consider using other enforcement powers. This can include a formal investigation which can result in a finding of unlawful behaviour.

Comment

An employer can be liable for acts of discrimination, including harassment, committed by employees towards their colleagues unless it has taken all reasonable steps to prevent that discrimination from taking place. The EHRC has published guidance for employers on protecting employees from harassment, including sexual harassment, at work.

The Government is currently backing a Private Members Bill that will create a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees. This will be supported by the EHRC’s statutory code of practice on sexual harassment and harassment in the workplace, which has yet to be published. The Bill will also reintroduce liability for employers in the event of harassment of employees by third parties, such as customers or clients.

We can provide bespoke equality awareness training in your workplace for managers. Contact us to find out more.

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