The current discussion around the dismissal of McDonald’s boss, Steve Easterbrook has focused attention on a very important point. Just what should employers be doing to ensure their workplaces reflect the current mood and culture around banishing sexual misconduct and sexual harassment? This has been a pressing issue ever since the start of the #MeToo movement at the end of 2017. There has been a whole slew of high profile related cases since then, which have indicated employers have a long way to go before the problem is under control.
Steve Easterbrook, by his own admission, seems to have breached his own Company's Code of Conduct by having a relationship with another employee, even though it was consensual from both parties’ point of view. Some have suggested that the McDonalds policy, in simply banning any kind of relationship between employees at work with a direct or indirect reporting relationship, went too far. But is that the case?
There are, of course, plenty of other strategies which can undoubtedly help manage and minimise the employer’s risk in this area. Strategies including the introduction of a training regime, having more proactive monitoring, carefully investigating allegations if and when they arise, ensuring disciplinary processes are appropriate, remembering the employer owes a duty to all of its employees including those accused of discriminatory behaviour or harassment, and so on.
But are they enough? Earlier this year, the founder and chief executive of the fashion chain Ted Baker was forced to resign after it was found that he had a policy of regularly hugging his employees. At the time, a number of commentators suggested employers might consider the introduction of a “no hugging” policy in order to combat the risk.
But more than that, I think there is now a real case for introducing a "no kissing" policy on the basis that it is unfair to leave employees guessing as to what may be appropriate in any given circumstance – sometimes particularly tricky for those who are new to the workplace, and maybe at the start of their careers, or who come to the UK from abroad, where there may be different cultural norms. I also believe that in certain workplaces, having a “no drinking” (not just “moderate” drinking) policy at work events may also be sensible, particularly if by allowing moderate use of alcohol, the risk is run that this will nonetheless become uncontrolled and uncontrollable.
As to consensual relations between members of staff, this can be extraordinarily difficult to monitor and control. We have had dating policies for some time now, although admittedly this is a concept that has had more traction in the United States, than here. It is a particular issue when the participants are not at the same level in the organisation. The risk is exacerbated if one has some measure of "control" over another. The traditional way of dealing with this issue in the UK is not to ban relationships as such, but to insist that they are reported as soon as they arise, so that the employer is aware and can make provision as appropriate.
In the majority of situations, that may be a sufficient precaution. But each employer is entitled to consider its own workplace, and the particular circumstances that apply to them. I do not know what the thought processes were at McDonalds, but I can see that there may be some force behind a company deciding that to do anything other than to put in place a ban on relationships between employees in a direct or indirect reporting relationship, is to put them at risk.
The employer is duty bound to provide a safe system of work, and to ensure its employees operate in a non-discriminatory environment, free from harassment. Employers will be acutely aware that if any one of their employees is found to have harassed another, the employer can be vicariously liable. They will also know that in certain circumstances this can be ameliorated if they can show they took "reasonable steps" to prevent that harassment. Employers will feel the weight of this responsibility, particularly now, and in some circumstances the armoury of protections and strategies that have traditionally been put forward to manage that risk may just not be sufficient. That is why I can see that in the not too distant future “no drinking”, “no hugging” and “no kissing” policies may well become the norm. Traditional dating policies are also likely to be more widely introduced so as to ban consensual relationships between employees – even, in some cases, if they are both as senior as each other.
Some may well feel this is taking things “too far”. However, in the past we have had suggestions for legislative change which have been the subject of wide spread derision when they were first raised. The very idea that there could be legislation to prevent age discrimination in the workplace is a good example. But some years on, following the introduction of legislation to outlaw age discriminatory behaviour in the workplace, who would honestly now say that such protection is neither justified, nor indeed welcome?
As to how such policies may be enforced, that is undoubtedly difficult. Realistically, employees will look to be discreet and make their relationships difficult to detect. But at least everyone's expectations will have been realised from the start. Employees will know how they are expected to behave and will, I suspect, soon become accustomed to the routine at work.
There really is no room nowadays for vagueness and misunderstanding in this area. As a lawyer who frequently deals with these cases for employers, victims and those who are alleged to have been perpetrators, I believe that just allowing people to enter into the workplace without it being made very clear right from the outset, what sexual conduct is acceptable and what is not, comes at a huge cost, if (you might even say “when”) it goes wrong.
So given all that we have seen these past 2 years since the advent of the #MeToo campaign, it is arguably a dereliction of the employer’s duty not to grasp the nettle and tackle this issue right now. If the McDonald's case forces a rethink in that respect, some good may have come from it after all.